VtesWn  tVC  Rat 


Pe.ee>Vcts    tod  dotunrie^ 


,+s 


Library 

OF  THE 

University  of  NortK  Carolina 

This  book  was  presented  by 

Members  of  the  family  of  the  late 

COL.  A.  B.  ANDREWS 


C^385.I-U)E 


UNIVERSITY  OF  N.C.  AT  CHAPEL  HILL 


00042093661 


FOR  USE  ONLY  IN 
THE  NORTH  CAROLINA  COLLECTION 


THIS  ITEM  MAY  NOT  BE  COPIED 
ON  THE  SELF-SERVICE  COPIER 


Form  No.  A -368 


RECORDS  AND  DOCUMENTS 


PERTAINING    TO   THE  TITLE 


'*v 


OF    TH1 


Western  N.C.  Railroad, 


Eastern  and  Western  Divisions. 


,,/ 


f 


CpSfe, 

WS2wb 


RECORD  OF  THE  SIBLEY  SUIT  TO  FORECLOSE  THE 
MORTGAGE  OF  THE  WESTERN  NORTH  CAROLINA 
RAIL  ROAD  COMPANY,  EASTERN  DIVISION,  (1872.) 


In  the    Circuit    Court   of  the  United  States,     Western  District 

of  Nonh    Carolina. 

Be  it  remembered  that  on  the  14th  day  of  August,  1S72,  Henry 
Clews,  and  Hiram  Sibley,  sued  as  prosecuted  out  of  the  Court 
aforesaid  a  writ  in  these  words  : 

United  States  of  America,  the  Western  District^ 

of  North  Carolina.  J"   SS. 

The  United  States  of  America  : 

To  the  Western  North   Carolina   Rail    Road   Company,    (Eastern  Division,) 
Tod.   R.  Caldwell,  Rums  Y.   McAden,  The  First  National  Bank  of  Char- 
lotte. John  Rutherford,  Thomas  Y.  Greenlee,  James  Greenlee,    Mary  Car- 
son, A.  H.  Erwin  &  N.   H.  D.   Wilson,  Assignee,  .&c,  of  the  Assets,  &c, 
of  the  President  and  Directors  of  the  Bank    of   Cape    Fear    a    Bankrupt, 
Thomas  Y.  Greenlee,  Trustee  of  Martha  M.  Greenlee,  Robert  M.  Walker: 
We  command  you,  and  every  one  of  you  that  you  appear   before  the  Judges 
of  our  Circuit  Court  of  the  United  States  of  America  for  the  Western  District 
of  North  Carolina,  at  the  office  of  the  Clerk  of  the   said    Court,  in  the  city  of 
Greensboro  in  said  District,  on  the  First  Monday  in  the  month  of  September 
next,  to  answer  the  Bill  of  Complaint  of  Henry  Clews  and  Hiram  Sibley,  com- 
p'ts,  against    the     Western  North    Carolina  Rail    Road  Company,    (Eastern 
Division,)  Tod.  R.  Caldwell  and  others. 

Filed  in  the  Clerk's  office  of  said  Court,  in  said  city  of  Greensboro,  then  and 
there  to  receive  and  abide  by  such  Judgment  and  decree,  as  shall  then,  or  there- 
after, be  made,  upon  pain  of  Judgment  being  pronounced  against  you  by  default. 
To  the  Marshal  of  the  District  of  North  Carolina  to  execute. 

Witness  :  The  Hon.  Salmon  P.  Chase,  Chief  Justice  of  the  Supreme  Court 
of  the  United  States,  at  Greensboro,  in  said  District,  the  Monday 

in  1S7     ,  and  in  ninety  (97)  seventh  year  of  the    Inde- 

pendence of  the  United  States. 
Issued  14th  day  of  August,  1872. 

Jno,  W.  Payne,  Clerk. 

And  on  the  return  day  of  said  writ  before  tWcferk  of  the  afore- 
said Court,  S.  T.  Carrow,  Marshal  of  said^Vistrict,  returns  that  he 
had  executed  the  said  writ  on  all  the  defendants  except  A.  H.  Er- 
win, John  Rutherford  and  Hiram  Kelly. 

And  thereupon,  it  was  ordered  that  alias  writs  issue  for  the 
aforesaid  Erwin,  Rutherford,  and  Kelly,  returnable  to  Rule  day  in 
October,  which  writs  were  issued. 


0^ 


<k 


(ft) 


Complaint. 


On  the  aforesaid  14th  day  of  August,  1S72,  the  following  bill  cf 
complaint  was  filed  in  office  by  the  plaintiff's  : 
Circuit  Court  of  the  United  States  for  the    Western  District  of 


North  Carolina  : 


Henry  Clews  and  Hiram  Sibley,  ] 

against  i 

The  Western  North  Carolina   Railroad  Com-  j 

pany,  (Eastern  Division,)  To;l  "R.  C  ildwtl1,  j 

Rufus    Y.    McAden,    The   First    National  \ 

Bank  of  Charlotte,  John  Rutherford,  Hiiam 

Kelley,  Thos.  Y.  Greenlee,  James  Greenlee, 

Mary  Carson,    A.   H  Erwin    and    N.  H.  D. 

Wilson.  J 

The  Honorable,  the  Judges  of  the  Circuit  Court  of  the  United  States 
within  and  for  the  Western  District  of  North  Carolina;  setting  in 
equity  : 

Henry  Clews,  of  the  City  of  New  York,  and  a  citizen  of  the  State 
of  New  York,  and  Hiram  Sibley,  a  citizen  of  the  State  of  New  York, 
and  a  holder  of  certain  bon  Is  of  the  Western  North  Carolina  Rail- 
road Company,  hereinafter  described  on  behalf  of  himself  and  the 
other  holders  of  sai  1  bonds,  who  shall  choose  to  be  made  parties  to 
this  suit,  bring  their  bill  against  the  Western  North  Carolina  Rail 
road  Company.  (E  istern  Division,)  a  corp  ration  created  under,  and 
by  virtue,  of  the  laws  of  the  State  of  North  Carolina,  having  its 
property  and  business  in  said  State,  and  being  a  citizen  thereof,  Ted 
R.  Caldwell,  of  Raleigh,  a  citizen  of  the  Sta»e  of  North  Carolina, 
Rufus  Y.  McAden,  of  Charlotte,  a  citizen  of  the  State  of  N  rth  Car- 
olina, the  First  National  Bank  of  Charlotte,  a  corporation  created 
under  the  laws  of  the  State  of  North  Caro  ina,  and  having  its  place 
of  business  at  Charlotte,  in  the  State  <  f  North  Carolina,  John  Ruth- 
erford, of  Bridge  Water,  a  citizen  of  the  State  of  North  Carolina, 
Hiram  Ke  ly,  of  Old  Fort,  a  citizen  of  the  State  of  North  Carolina 
A.  H.  Erwin,  of  Mqrg;'nton,  a  citizen  of  the  State  of  North  Carolina, 
Thomas  Y  Greenlee^  Tames  Greenlee  and  Mary  Carson,  the  sa  d 
last  named  three  being  each  of  Marion,  and  each  citizens  of  the 
State  Of  North  Carolina,  the  Bank  of  Cape  Fear,  a  corporation  cre- 
ated under  the  laws  of  the  State  of*  North  Carolina  and  having  its 
place  of  business  at  Wilmington  in  said  State,  N.  H.  D.  Wilson,  of 
the  Bank  of  Cape  Fear,  in  bankruptcy,  and  thereupon  your  orators 
complain  and  say : 


(3) 

That  the  "Western  North  Carolina  Railroad  Company  was  at  the  Corporation! 
times  hereinafter  mentioned,  and  still  is  a  corporation  created  under 
and  by  virtue  of  an  act  of  the  State  of  North  Carolina,  ratified  in 
General  Assembly  of  said  State  February  15th,  1855,  entitled  "An 
act  to  incorporate  the  Western  North  Carolina  Railroad  Company,1' 
and  of  a  law  of  the  said  State  of  North  Carolina  passed  rnd  ratified 
by  the  General  Assembly  of  said  State  on  the  19th  day  of  December, 
1366,  entitled  "An  act  to  enhance  the  value  of  the  bonds  to  be  issued 
for  the  completion  of  the  Western  North  Carolina  Railroad,  and  for 
other  purposes."  All  of  which  acts  were  accepted  by  the  stockhold- 
ers of  the  Company  in  accordance  with  the  terms  of  the  Charter, 
and  the  divers  acts  of  the  same  State  amendatory  thereof,  with  pow- 
er conferred  by  the  said  acts  and  the  general  law  of  said  State  to 
a  'quire  lands  for  the  purpose  of  a  R  dlroad  from  the  town  of  Salis 
bury  to  some  point  on  the  French  Broad  River  beyond  the  Blue 
R  dge,  and  to  construct  said  Railroad  and  to  acquire  and  use  such 
locomotives,  cars,  and  chattels,  and  other  property  as  might  be  ne 
cessary  for  the  use  Rnd  operation  of  said  Road,  and  the  transaction 
of  the  business  Gf  transporting  property  and  passengers,  and  the 
do;n»  of  such  other  business  as  it  properly  might  do  in  connection 
therewith,  and  the  said  corporation  had  power  at  the  times  herein 
after  designated  under  said  several  acts  and  the  general  laws  of  said 
State  to  borrow  such  sums  of  money  as  might  be  necessary  for  con- 
structing, equipping,  completing,  finishing  and  operating  said  Road, 
and  for  the  purchase  of  locomotives,  cars,  and  other  machinery,  and 
fjr  properly  running  and  operating  said  Railroad,  and  for  that  pur- 
pose it  was  authorized  and  empowered  to  issue  bonds  of  the  said 
Company  for  such  term  of  years  as  the  president  and  directors 
might  deem  expedient,  and  bearing  interest  not  greater  than  eight 
per  cent,  per    annum,    and  to  make,  execute,  and  deliver  a  deed  or  Power  to  issue 

-itpj  •  ii  i  •  «    i  bonds. 

deeds  of  mortgage  conveying  a  whole  or  a  portion  of  the  rights,  ti 
ties  and  interest  of  the  Company  in  any  or  all  of  the  estate,  both 
real  and  personal,  belonging  to  the  said  Compandor  in  any  manner 
pertaining  to  the %  same,  to  the  purchaser* or  purchasers  of  said 
bonds,  and  conditioned  for  the  payment  of  said  bonds  at  maturity. 
And  that  such  bonds  should  be  issued  by  the  president  and  direc- 
tors of  said  Company  whenever  it  should  appear  to  them  necessary 
f  r  the  completion  of  said  Road  to  raise  other  funds  besides  the 
State  subscription.     All  of  which  acts  your  orators  are  ready  to  pro- 


(4) 

duce  as  tbis  court  may  direct,  and   reference    thereunto  being  bad, 
they  will  more  fully  and  at  large  appear. 

That  thereupon  the  president  and  directors  of  the  said  Railroad 
Company  took  the  necessary  steps  for  the  purchase  or  condemnation 
of  the  lands  necessary  for  the  roadway  of  said  Railroad,  and  did  ac 
quire  by  deeds  of  conveyance,  and  release  other  lands  f ur  the  inci- 
dent purposes  of  said  Railroad,  and  did  grade,  equip,  and  complete 
a  large  part  of  said  Road  and  commenced  the  transport  of  freight 
and  passengers  thereon. 

That  in  the  course  of  the  affairs  of   the  said  Western  North  Caro- 
lina Railroad  Co.,  and  the  construction  of  the  said  Railroad,  it  be- 
came necessary,  as  your  orators  are  informed   and  believe,  for   the 
said  Company  to  borrow  for  the  purpose  of  constructing,  equipping 
and  completing  the  said  Railroad  then   in  process   of  construction, 
and  for  the  purpose  of   paying   monies  due    to   the   contractors  f>  r 
work  already  done  on  the  line  of  the  said  Railroad,  the  sum  of  four- 
teen hundred  thousand  dollars,    and  it   appeared  necessary   to    the 
president  and  directors  of  the  said  Railroad  to  raise  the  said  amount 
in  addition  to  the  subscription  made  by  the  State  of  North  Carolina, 
That  in  order  to  procure  the  said   sum    of    money   which  from  its 
large  amount  was  not  expected  to  be  procured  from  one  person,  the 
issued  bonds,   president  and  directors  of  said  Railroad  Company  on  the  8th  day  of 
January,  A.  D.,  1870,  in  pursuance  of,  and  in  conformity    with,    the 
various  acts  of  the  General  Assembly  of  the  State  of  North  Carolina, 
hereinbefore  referred  to,  did  res<  lve  to  issue  fourteen  hundred  thous  tnd 
dollars  of  coupon  bonds  of  said  Company,  to  bear  eight  per  cent,  semi- 
annual interest,  and  to  run  for  twenty  years,  to  be  of  the  denomina 
tions  of  one  hundred  dollars  and  one  thousand  dollars,  all  to  be  se- 
cured by  a  mortgage  or  deed  in  trust  to  Tod  R.  Caldwell  and  Henry 
Clews,  as  trustees,  on  all  the  road,  road-bed,    charter,  iron,  cars,  en- 
gines, depots,  right  of  way,  franchises,  rights,    credits  and  all  prop- 
erty, real  and  personal,  belonging  to  said  Railroad  Company,   inclu- 
ding all  of  the  said  Kt^jroad  in  running  order,  as  well  as  that  graded 
and  being  graded,  including  the  entire   line  from  Salisbury  to  Ashe 
ville,  and  all  the  property,  real  and  personal,  that  the  said  Railroad 
Company  then  had  or  owned,  and  all   that   it  might   aequire  in  the 
future  as  appurtenant  to  said  Railroad,  conditioned  for  the  payment 
of  the  said  bonds  at  then  maturity,  and  pledging  the  profits  arising 
from  the  Road  for  the  payment  of  the  interest  from  time  to  time,  as 


(5) 

it  might  fall  due,  it  being  intended  by  the  said  president  and  direc 
tors  to  secure  tile  payment  of  the  said  bonds  without  priority  in  the 
hands  of  whomsoever  might  thereafter  hold  them  or  any  of  them. 

That  said  resolution  of  said  board  of  directors   was   passed  at  a 
meeting  of  the  board  and  duly  entered  on  the  minutes  of  the  board. 

That  thereupon  and  on  the  1st  day  of  March,  1870,  as  your  ora- 
tors are  informed  and  believe,  the  said  Eailroad  Company  made  and  Aggr'te  bonds 
executed  its  bonds  to  the  aggregate  amount  of  fourteen  hundred  $1'400'000- 
thousand  dollars,  bearing  interest  at  eight  per  cent,  per  annum,  pay 
able  semi-annually  on  the  first  days  of  January  and  July,  both  prin 
cipal  and  interest  payable  in  the  City  of  New  York,  twelve  hundred 
of  which  were  of  the  denomination  of  one  thousand  dollars  each, 
and  twenty  hundred  of  the  denomination  of  one  hundred  dollars 
each,  all  bearing  date  March  1st,  1870,  and  payable  January  1st, 
1890  That  each  of  said  bonds  purported  and  declared  that  the 
Western  North  Carolina  Eailroad  Company  was  indebted  to  the 
holder  thereof  in  the  respective  amount  thereof  lawful  money  of  the 
United  States,  which  it  promised  to  pay  to  him  in  the  City  of  New 
York,  with  interest  at  the  rate  of  eight  per  cent,  per  annum,  which 
interest  it  also  declared  should  be  payable  in  the  City  of  New  York, 
on  the  first  days  of  January  and  July  in  each  year,  on  the  surrender 
of  certain  warrants  or  coupons  thereto  attached,  and  printed  on  the 
same  paper  with  the  bond  and  being  part  thereof,  and  the  said  cou- 
pons likewise  expresed  the  payment  of  the  said  interest  half  yearly  ; 
each  coupon  representing  six  months  interest  during  the  whole  term 
of  the  bond  from  March  1st,  1870,  to  January  1st,  1890. 

And  the  said  company  caused  the  said  bonds  to  be  attested  by  the 
signatm*es  of  the  President  and  Secretary  of  the  said  company,  and 
caused  the  coporate  seal  of  the  said  company  to  be  affixed  thereto, 
and  caused  the  said  coupons  to  be  assigned  by  the  treasurer,  of  the 
said  company,  and  that  thereupon  the  said  bonds  were  authentica- 
ted by  having  endorsed  thereon  the  certificate  of  the  trustees  named 
in  the  mortgage,  yiz  :  Tod  R.  Caldwell  and  Menry  Clews. 

And  your  orators  further  show  that  at  the  time  of  the  making 
and  executing  the  said  bonds,  to  wit  ;  on  the  first  day  of  March, 
1870,  the  said  the  Western  North  Carolina  Rail  Road  Company 
made  and  executed  under  its  common  seal  an  indenture  of  mort-  MafchfiSTO. 
gage  bearing  date  as  of  that  day  between  said  rail  road  company  as 
party  of  the  first  part  and  your  orator,  Henry  Clews  and  the    de- 


(6) 

fendant,  Tod  R.  Caldwell  as  trustees  parties  of  the  second  part, 
wherein  after  reciting  the  passage  of  the  Act  of  the  General  As- 
sembly authorizing  the  issuing  of  the  said  bonds  and  the  ratifica- 
tion thereof  by  the  stockholders  of  the  said  company,  and  after  re- 
citing the  determination  arrived  at  by  the  President  and  Directors 
ot  the  company  as  to  the  necessity  of  raising  other  funds  in  addi- 
tion to  the  State  appropriation  to  complete  said  rail  road  and  the 
resolution  of  the  President  and  Directors  of  the  Sth  of  January, 
1870,  tore-issue  fourteen  hundred  thousand  dollars  of  coupon  bonds 
at  eight  per  cent,  interest  payable  in  twenty  years,  to  be  secured  by 
a  mortgage  upon  all  the  property  of  the  road,  and  the  dhection 
given  by  said  President  and  Directors  to  make  said  bonds  and  said 
mortgage,  the  said  the  Western  North  Carolina  Rail  Road  Com- 
pany, for  and  in  consideration  of  the  sum  of  one  dollar  to  it  in 
hand  paid  by  the  party  of  the  second  part,  and  for  and  in  consider- 
ation of  the  premises  and  for  the  securing  the  said  bonds,  (a  copy 
of  one  of  which  was  included  in  said  mortgage,)  and  the  interest 
to  grow  due — thereon  granted,  bargained,  sold  aliened,  transferred 
and  conveyed  to  your  orator,  Henry  Clews  and  to  Tod  R.  Caldwell 
as  joint  tenants  and  not  as  tenants  in  common,  and  to  the  successor 
or  survivor  of  them  and  to  their  assigns,  in  trust,  all  the  property 
of  the  said  company  by  the  following  description  :  all  and  singular 
the  rail  road  of  the  said  party  of  the  first  part  known  and  designa- 
ted as  the  Westei-n  North  Carolina  Rail  Road,  extending  from  the 
terminus  thereof  in  the  city  of  Salisbury  to  the  terminus  thereof  at 
Asheville  in  the  State  of  North  Carolina,  and  being  about  one 
hundred  and  forty  miles  in  length,  embracing  all  the  railways, 
ways,  rights  of  way,  depot  grounds  and  other  land;  all  tracks, 
bridges,  viaducts,  culverts,  fences  and  other  structures;  all  depot- 
houses,  station  houses  and  other  buildings;  all  machine  shops  and 
other  shops  whether  now  held  or  hereafter  built  or  acquired  for 
use  in  connection  with  the  said  rail  road,  hereinafter  described, 
and  including  also  all  locomotives,  tenders,  cars  and  other  rolling- 
stock  or  equipments  andk^d  machinery  implements,  tools,  fuel  and 
tools  for  construction  on  any  of  its  equipments  or  appurtenances 
whether  now  held  or  hereafter  acquired,  all  of  which  things  are 
hereby  declared  to  be  appurtenances  and  fixtures  of  said  rail  road, 
together  with  all  corporate  franchises  necessary  and  proper  to  en- 
able the  parties  of  the  second  part,  their  assigns  and  successors,  to 


(7) 

have,  hold,  use,  repair  and  operate  said  railroad,  together  with  all  and 
singular  the  tenements,  hereditaments  and  appurtenances,  franch- 
ises and  rights  thereto  belonging  and  the  reversions,  remainders, 
rents  and  profits  thereof.  And  the  said  mortgage  also  contained 
the  following  further  clauses:  to  have  and  to  hold  the  said  rail  road, 
equipments  and  appurtenances  and  property  unto  the  said  parties 
of  the  second  part  as  joint  tenants  and  not  as  tenants  in  common, 
and  to  the  successor  or  successors  or  survivor  of  them  in  trust,  and 
to  the  assigns  of  them  the  said  parties  of  the  second  part  in  trust, 
and  to  their  assigns  and  to  the  survivor  or  successors  and  the  as- 
signs of  such  in  trust  and  to  the  only  proper  use  and  behoof  of  the 
said  parties  of  the  second  part,  and  to  the  survivor,  successor  or 
successors  of  them  in  trust  and  their  assigns  in  trust;  nevertheless 
to  have  and  to  hold  the  same  upon  the  conditions  and  lor  the  pur- 
poses hereinafter  generally  expressed,  to  wit  : 

Article  ist.  Until  default  shall  be  made  in  the  payment  of 
the  principal  or  interest  of  said  bonds  or  some  or  any  of  them,  or 
until  default  shall  be  made  in  respect  of  something  by  these 
presents  required 

to  be  done  or  kept  by  said  party  of  the  first  part,  said  part  of  the 
first  part  shall  be  suffered  and  permitted  to  possess,  control  and 
operate  the  said  rail  road  and  every  part  and  parcel  thereof,  and 
its  appurtenances,  and  to  take  anil  use  the  tolls,  rents,  incomes  and 
profits  of  said  rail  road  as  fully  as  if  this  deed  had  not  been   made. 

Article  2nd.  In  case  default  shall  be  made  in  the  payment  of 
any  halfyear'-s  interest  on  any  of  the  aforesaid  bonds  at  the  time, 
and  in  the  manner  in  the  coupons  issued  therewith  provided,  the 
said  coupons  having  been  presented  and  payment  thereof  demand- 
ed and  in  case  such  default  shall  continue  three  months,  after  said 
coupons  became  due  and  payable  and  demanded,  then  and  there- 
upon the  principietof  all  the  bonds  secured  hereby  shall  become 
immediately  due  and  payable,  anything  contained  in  the  said  bonds 
or  herein  to  the  contrary  notwithstanding. 

Article  3d.  The  party  of  the  first  part  shall  from  time  to  time, 
as  the  same  may  become  necessary,  when  thereto  requested  by  the 
trustees,  execute  all  such  further  deed  or  deeds  of  conveyance  for 
the  better  securing  to  the  trustees  herein  expressed  the  said  road, 
and  appurtenances  and  equipments,  and  all  other  interest  or  pro- 
perty, hereafter  to  be  acquired  or  owned  in  anyway. 


(8) 

Article  4th.  If  the  party  of  the  first  part  shall  well  and  truly 
pay  the  principal  and  interest  of  said  bonds  and  the  interest  due 
thereon  according  to  the  true  intent  and  meaning  of  the  said  bonds 
and  this  deed,  and  shall  in  all  things  observe  and  keep  all  the 
agreements  and  undertakings  of  these  presents,  then  and  in  that 
event  all  the  estate,  right,  title  and  interest  of  the  parties  of  the 
second  part  and  their  survivors  and  successors  in  the  trust  hereby 
created  shall  cease  and  terminate,  otherwise  to  remain  in  full  force 
and  virtue. 

Article  5th.  It  shall  be  the  duty  of  said  trustees  or  such  as 
shall  be  in  office,  to  take  appropriate  proceedings  in  any  Court 
having  jurisdiction  thereof  by  way  of  foreclosure  or  otherwise  to 
entorce  the  rights  of  the  bond-holders. 

And  the  said  indenture  of  mortgage  contained  the  further  clause 
that  the  word  trustee  therein  used  was  to  mean  the  trustee  or  trus- 
tees for  the  time  being,  and  that  any  such  trustee  during  any  vacancy 
in  the  office  might  exercise  the  powers  of  all  the  trustees  and  that 
either  trustee  might  resign  his  office  to  the  other  trustee,  and  that 
either  or  both  of  said  trustees  might  be  removed  by  the  vote  of  the 
holders  of  a  majority  of  the  bonds  actually  sold,  and  that  in  case  of 
any  vacancy  in  the  trusteeship  such  vacancy  could  be  filled  by  the 
surviving  trustee  and  the  said  rail  road  company  and  that  any 
trustee  so  appointed  should  be  vested  with  all  the  rights  of  the 
original  trustee,  and  that  until  any  vacancy  should  be  thus  filled 
the  act  of  the  remaining  trustee  should  be  as  valid  as  if  both  had 
acted. 

The  said  indenture  of  mortgage  further  provided  that  on  any 
sale  of  the  property  of  the  said  company  under  said  mortgage  and 
the  payment  of  the  bonds  and  interest  and  costs  of  foreclosure,  the 
surplus  arising  on  any  sale  should  be  paid  over  to    said  company. 

Your  orators  further  show  that  the  said  mortgage  was  thereupon 
and  on  the  nth  day  of  April,  1870,  signed  by  the  President  and 
Secretary  of  the  said  railroad  company,  and  the  corporate  seal  of 
the  said  rail  road  company  was  affixed  thereto,  and  the  President 
and  Secretary  of  the  said  rail  road  company  on  the  same  day  dulv 
acknowledged  the  execution  thereof  before  the  Probate  Judge  of 
the  county  of  Burke  in  the  State  of  North  Carolina,  and  Tod  R. 
Caldwell  and  Henry  Clews  endorsed  thereon  their  acceptance  of 
the  trust  thei'ein  contained,  and  the  said  mortgage  was  thereupon 
duly  delivered  to  the  said  trustees,  and  the   same  was    thereupon 


(9) 

duly  recorded  on  the  13th  day  of  April,  1870,  in  the  Registrar's 
Office  of  the  county  of  Buncombe  in  Book  No.  33,  page  225,  and 
was  also  recorded  subsequently  thereto,  and  on  the  1st  day  of  June, 
1872,  in  the  county  of  McDowell,  and  subsequently  thereto,  and 
on  the  3d  day  of  June,  1S72,  in  the  county  of  Iredell,  and  sub- 
sequently thereto,  and  on  the  4th  day  of  June,  1872,  in  the  county 
of  Catawba,  and  subsequently  thereto,  on  the  8th  day  of  June, 
1S72,  in  the  county  of  Burke,  and  subsequently  thereto,  and  on 
the  14th  day  of  June,  1S72,  in  the  county  of  Rowan,  all  in  the 
State  of  North  Carolina,  the  line  of  said  rail  road  passing  through, 
and  being  situated  in  each  of  said  counties,  and  said  counties  con- 
taining the  whole  of  the  property  of  said  rail  road  company. 

And  your  orators  further  show  that  after  the  execution  of  the 
said  mortgage,  the  said  the  Western  North  Carolina  Rail  Road 
Company  issued,  and  delivered  the  said  bonds  numbered  consecu- 
tively, and  representing  one  million  three  hundred  and  fifty  thous- 
and dollars  to  divers  persons,  who  as  your  orators  are  informed, 
and  believe,  advanced  to  the  said  corporation  the  money  thereupon 
according  to  the  purposes  expressed  in  the  said  mortgage,  and 
that  said  bonds  were  accepted,  and  received  by  the  several  persons 
to  whom  they  were  so  issued,  and  delivered  in  reliance  upon  the 
security  in,  and  by  the  said  mortgage  contained,  and  created,  and 
upon  good  considerations  by  them  respectively  paid,  and  advanced, 
and  said  bonds  have  come  into  the  hands  of  numerous  owners,  and 
holders  thereof,  who  are  entitled  to  the  benefit  of  said  mortgage, 
and  the  security  thereof,  upon  good  and  valuable  consideration  by 
them  respectively  paid  relying  on  said  security  of  said  mortgage, 
and  that  among  others,  your  orator,  Hiram  Sibley,  has  for  a  valu- 
able consideration,  and  relying  upon  the  protection  of  said  mort-  Sibley's  bon- 
gage,  become  the  owner  and  holder  ot  divers  of  said  bonds  repres- 
enting one  million  and  fifty-seven  thousand  dollars,  and  is  likewise 
entitled  to  all  the  securities  provided  by  said  mortgage.  That  said 
bonds  so  received,  and  held  by  your  said  orator,  Hiram  Siblev, 
are  of  the  following  numbers,  and  denominations  :  one  thousand 
and  seven  bonds  of  the  denomination  of  one  thousand  dollars  each 
with  coupons  attached  from  July  1870,  numbered  from  27  to  250 
inclusive,  276  to  483  inclusive,  501  to  540  inclusive,  591  to  625  in- 
clusive, and  701  to  1200  inclusive,  also  twenty-five  bonds  of  the 
denomination  of  one  thousand  dollars  each  with  coupons  attached 
from  January  1871,  numbered  676  to  700  inclusive,  also  two    hun- 


(IO) 

dred  and  fifty  bonds  of  one  hundred  dollars  each,  numbered  from 
2651  to  3200  inclusive,  with  coupons  attached  from  July  1870. 

That  your  orators   do  not  know   the   names   of  the   owners  and 
holders  of  aO  of  said  bonds,  but  they  allege  that  the  persons  owning 
the  same  are  too  numerous  to  be   m.de    parties  to  this  suit  without 
exposing  the  same  to  great  delays  and  inconvenience   from  abite 
ment  by  death  and  otherwise. 

And  your  orators  further  show  that  they  are  informed  and  believe 
'•'>  that  the  interest  for  two  years  prior  to  March  1st,  1872,  upon  baid 
bonds,  held  and  owned  by  your  orator,  Hiram  Sibley,  was  duly  de- 
manded on  the  14th  day  of  March,  1872,  from  the  president  of  the 
said  Company  on  presentation  of  the  coupons  annexed  to  said  bunds, 
and  payment  thereof  was  refused  and  that  payment  thereof  has  never 
been  made,  but  the  same  remains  wholly  due  and  unpaid. 

And  your  orators  further  show  that  your  orator,  Hiram  Sibley, 
Robert  A.  Lancaster,  H.  F.  Atkinson,  James  O.  Proudfit,  J.  Camp 
bell  Maben,  who  were,  and  are,  each  holders  and  owners  of  said 
bunds  to  amount  of  at  least  two  thousand  dollars,  have  in  writing 
demanded  that  the  trustees,  Tod  R.  Caldweil  and  Henry  Clews, 
shall  proceed  to  foreclose  said  mortgage  and  collect  said  bonds. 

That  Tod  R.  Caldwell  refused  to  take  any  steps  in  the  matter,  and 
is  therefore  made  a  party  defendanc  herein. 

And  your  orators  further  show  that  none  of  the  coupons  upon 
the  said  one  million  three  hundred  and  fifty  thousand  dollars  of 
bonds  secured  by  said  mortgage,  and  so  issued  as  aforesaid,  have 
been  paid  by  the  said  Company.  And  that  they  are  all  due  and  out- 
standing in  the  hands  of  the  various  holders  of  said  bonds,  and  that 
there  has  not  been  at  any  time  since  the  first  of  said  coupons  became 
due,  any  moneys  whatever  at  the  City  of  New  York,  applicable  to 
the  payment  thereof,  and  that  the  whole  of  said  bonds,  both  princi- 
pfo^and  interest,  have  hereby  become  due. 
McAden  claim  And  your  orators  further  show  unto  Yonr  Honors  trafc  Rufus  Y. 
McAden  have,  or  claim  to  have,  some  interest  in,  or  lien  upon  the 
said  mortgaged  premises  or  property,  or  some  part  thereof,  which 
interest  or  lien,  if  any  has  accrued,  subsequent  to  the  lien  of  the 
mortgage  hereinbefore  set  forth. 

And  your  orators  further  show  that  on,  or  about  the  day  of 

BFearjn'rtg't!)e  ^ne  Bank  of  Cape  Fear,   a  corporation   organized  under  the 

laws  of  the  State  of  North   Carolina,  being  a  creditor  of   the  said 


(II ) 

"Western  North  Carolina  Railroad  Company,  recovered  a  judgment 
in  the  Superior  Court  of  said  county  of  Buncombe,  in  said  State 
against  said  Company,  for  the  sum  of  twenty  thousand  eight  hun- 
dred dollars,  and  under  said  judgment  was  taking  the  necessary 
legal  steps  to  sell  the  property  of  the  said  Company.  That  such 
judgment  was  a  lien  subsequent  to  the  lien  of  the  mortgage  herein- 
before set  forth.  That  the  said  Company,  on  or  about  the 
day  of  November,  1871,  agreed  to  compromise  said  indebtedness, 
and  to  cause  the  same  to  be  paid  off  by  paying  fifty  cents  on  the 
dollar  of  said  judgment. 

That  not  having  the  money  on  hand,  it  agreed  with  the  defendant, 
Rufus  Y.  McAden,  that  the  said  Rufus  Y.  McAden  should  advance 
the  moneys  necessary  to  be  advanced,  and  that  at  the  sale  of  the 
property  of  the  said  Road,  the  attorneys  of  the  Bank  of  Cape  Fear 
should  buy  in  and  protect  the  property  of  the  said  Road,  and  it  was 
then  and  there  further  agreed  between  the  said  Railroad  Company 
and  the  said  Rufus  Y.  McAden,  that  the  said  Rufus  Y.  McAden 
should  ^old  the  lien  thus  to  be  acquired,  as  security  for  the  repay 
ment  of  his  advances  of  $10,400,  thus  to  be  made  as  aforesaid. 

That  at  Statesville,  in  the  State  of  North  Carolina,  a  memorandum  M^ten agree- 
in  writing,  of  said  agreement,  was  at  the  time  made  and  signed  by 
Charles  M.  Stedmau,  on  the  pirt  of  the  Bank  of  Cape  Fear,  and  by 
S.  McDowell  Tate,  on  the  part  of  the  Western  North  Carolina  Rail- 
road Company,  arid  the  said  memorandum  was  then  and  there  hand 
ed  over  and  delivered  to  Rufus  Y.  McAden  as  a  voucher  to  protect 
him  in  such  advances. 

That  in  pursuance  of  said  agreement,  the  said  The  Bank  of  Cape 
Fear  caused  divers  sales  of  all  the  franchises,  property  and  equity 
of  redemption  of  the  said  Railroad  Company,  to  be  made  at  public 
auction  by  the  sheriffs  of  the  several  counties  on  the  line  of  said  8ate* 
Road,  and  the  said  franchises,  property,  an  I  equity  of  redemption 
were  bidden  off  in  pursuance  of  said  agreement,  by  Charles  M.  Sted 
man,  who  thereupon  held  the  same  in  trust.  Subject,  nevertheless, 
to  the  lien  of  the  aforesaid  mortgage.  And  the  said  Rufus  Y. 
McAden  thereupon  advanced  and  paid  to  the  Bank  of  Cape  Fear 
the  sum  of  $10,400,  which  he  had  agreed  with  the  said  Railroad 
Company  to  advance  in  satisfaction  of  its  claim,  and  the  said  Charles 
M.  Stedman  transferred  to  him  the  said  bids,  and  the  said  Rufus  Y. 


(12) 

McAden  held  the  lien  of  the  said  sales,  so  made  as  aforesaid,  as  se- 
curity for  his  said  advances. 

That  on  the  22nd  day  of  June,  1872,  at  the  City  of  New  York,  the 
said  the  Western  North  Carolina  Railroad  Company  tendered  to  said 
Rufus  Y.  McAden  the  amount  of  his  said  advance  with  interest 
thereon  at  the  rate  of  seven  per  cent,  per  annum,  from  the  time  of 
his  making  the  advance,  being  the  sum  of  $12,500,  and  offered  to 
p  .y  him  any  expenses  in  the  matter  that  he  had  incurred,  whereupon 
the  said  Railroad  Company  became  entitled  to  have  all  sales  of  its 
property  and  franchises  under  said  judgment  vacated  and  set  aside. 
And  all  tides  thereunto  standing  in  the  name  of  the  said  Charles  M. 
Siedman,  Rufus  Y  McAden,  or  their  assigns,  either  as  original  or 
mesne  purchasers  at  said  judgment  sales  transferred  to  said 
Company.  That  the  said  the  President  and  Directors  of  the  Bank 
of  Cape  Fear  have  been  duly  adjudged  bankrupts  in  the  District 
Court  of  the  United  States,  in  and  for  the  District  of  Cape  Fear,  in 
the  District  of  North  Carolina.  And  N.  H.  D.  Wilson,  of  said  State 
has  been  duly  appointed  assignee. 

Your  orators  further  show  that  no  proceedings  at  law  have  been 
ha  1,  nor  has  any  suit  or  action  been  commenced  by  or  on  behalf  of 
your  orators,  or  any  of  them,  or  any  of  the  holders  of  the  bonds  of 
the  said  Railroad  Company,  hereiubefore  described,  to  enforce  or 
co  lect  any  mouey  secured  to  be  paid  the  said  bonds,  and  mortgage, 
or  interest  thereon,  excepting  only  this  suit. 

And  your  orators  well  hoped  that  no  disputes  would  have  arisen, 
touching  the  said  bonds  or  the  faithful  payments  of  the  coupons  for 
interest  thereon,  as  it  should  become  due,  but  that  the  defendant, 
the  Western  North  Carolina  Railroad  Company,  would  have  com- 
plied with  the  reasonable  request  of  your  orators,  as  in  conscience 
and  equity  it  ought  to  have  done. 

But  now,  so  it  is,  may  it  please  Your  Honors,  that  the  said  the 
foniederr tion.  Western  North  Carolina  Railroad  Company  combining  and  confede 
rating  the  said  Rufus  Y.  McAden  and  divers  other  persons  at  pres- 
ent unknown  to  your  orators,  whose  names,  when  discovered,  your 
orators  pray  they  may  be  at  liberty  to  insert  herein,  with  apt  words 
to  charge  them  as  parties  defendant  hereto,  and  contriving  how  to 
wrong  and  injure  your  orators  in  the  premises.  They,  the  said  the 
Western  North  Carolina  Railroad  Company,  and  Rufus  Y.  McAden, 
absolutely  refuse  to  comply  with  such  request,   and  it,   the  Western 


(i3) 

North  Carolina  Railroad  Company,  pretends  and  alleges  as  the  sole 
ground  of  its  refusal,  that  it  has  no  means  wherewith  to  pay  said 
bonds,  or  the  interest  thereon,  and  he,  the  said  Rufus  Y.  McAden 
pretends  and  alleges  as  the  sole  ground  of  his  refusal,  that  he  pur- 
chased at  the  sheriffs'  sales  of  the  property  of  said  Company,  under 
the  judgment  held  by  the  Bank  of  Cape  Fear,  solely  for  his  own  use 
and  benefit,  and  not  as  trustee  for  the  said  the  Western  North  Car- 
olina Railroad  Company  ;  Whereas,  your  orators  charge  the  con 
trary  of  said  pretence  to  be  the  truth.  All  which  actings,  doings 
and  pretences  of  the  said  defendants  are  contrary  to  equity  and 
good  conscience,  and  tend  to  the  manifest  wrong,  injury  and  oppres 
sion  of  your  orators  in  the  premises. 

To  the  end  therefore  that  the  said  defendants  may,  if  they  can, 
show  why  your  orators  should  not  have  the  relief  hereby  prayed,  and 
may  upon  their  several  and  respective  corporal  oaths,  and  according 
to  the  best  and  utmost  of  their  several  and  respective  knowledge, 
remembrance,  information  and  belief,  full,  true,  direct  and  perfect 
answer  make  to  such  of  the  several  interrogatories  hereinafter  num- 
bered and  set  forth  as  by  the  note  hereunder  written.  They  are  res- 
pectively required  to  answer,  that  is  to  say  : 

1st.  Whether  a  paper  writing  was   made   and  executed  between 
Charles  M.  Stedman  and  S.  McDowell   Tate,  at  Statesville  or  else  interrogato- 
where,  touching  the  property  of  the   AVestern   North  Carolina  Rail- 
road Company. 

2nd.  Whether  said  writing  came  into  the  hands  of  the  defendant, 
Rufus  Y.  McAden. 

3rd.  What  were  the  words  of  said  writing,  and  the  defendants  are 
severally  required  to  (have)  annexed  a  true  copy  of  said  writing, their 
several  answers. 

And  that  the  said  the  Western  North  Carolina  Railroad  Company, 
Tod  R.  Caldwell,  Rufus  Y.  McAden  and  the  rest  of  the  confederates,  p^yer  for  re- 
when  discovered,  may  come  to  a  fair  andjust  account  with  your  or- 
ators and  may  pay  to  your  orators  the  amount  of  the  said  bonds 
and  interest  thereon,  and  that  your  orators  .  may  have  such  further 
or  other  relief,  or  both,  in  the  premises,  as  the  nature  of  the  case 
shall  require,  and  to  Your  Honors  shall  seem  meet.  May  it  please 
Your  Honors  to  grant  unto  your  orators  not  only  the  most  gracious 
writ  or  writs  of  injunction  of  the  United  States,  issuing  out  of,  and 
under  the  seal  of  this  Honorable  Court  to  be  directed  to  the   said 


(H) 

Rufus  Y.  McAdeu,  his  attorneys  and  agents,  restraining   them  from 
proceeding  at  law  or  otherwise,  in  interfering  with    any  of  the  \  rop 
erty  covered  by  the  mortgage   hereinbefore   described,    but  also  the 
most  gracious  writ  of  subpoena  of  the  United  States  of  America,    to 
be  directed  to  the  Western  North  Carolina  Railroad   Company,  Ru- 
fus Y.  McAden,  Tod  R.  Ca' dwell,  and  the  rest  of   the   confederates, 
when  discovered,  thereby  commanding  them,  and  every  one  of  them, 
at  a  certain  day  and  under  a  certain   pain,   therein  to   be   specified, 
personally  to  appear  before  Your  Honors  in  this   Honorable    Court, 
and  then  and  there  to  answer  all,  and  singular  the  premises,  and    to 
stand  to  perform  and  abide  such  order  and  decree  therein  as  to  Your 
Honors  shall  seem  meet ;  and  that  the  said  divers  sales  of  the  prop- 
erty of  the   said    The   Western  North  Carolina  Railroad  Company 
may  be  decreed  to  have  been  made  for  the  benefit  of  the  said  Com 
pany,  and  that   said  Rufus  Y.   McAden  may  be  declared  to  be   a 
trustee  of  the  said  the   Western   North  Carolina  Railroad  Company, 
and  may  be  required  to  execute  conveyances  or  releases  of  the  prop- 
erty of  the  Company  by  him  purchased  ;  and  that   an  account  m?y 
be  taken  of  bonds  secured  by  che  said  mortgage,   and  the   amount 
due  thereon  for  principJdLand  interest,  and    that  the  names  of  the 
lawful  holders  thereof  may   be  ascertained. 

That  the  trustees  Tod  R.  Caldwell  and  Henry  Clews  may  be 
let  into  the  possession  of  the  incomes,  tolls  and  profits  of  the  said 
the  Western  North  Carolina  Railroad  Company,  and  of  the  franch 
ises,  railroad  and  premises  covered  by  the  said  mortgage  with  nil 
depots,  machine  shops,  station  houses  and  real  estate,  locomotives, 
cars,  tools,  machinery  and  other  personal  property  connected  with 
the  said  company,  and  appertaining  to  it  or  used  on  or  about  the 
operation  of  said  road  at  the  date  of  said  mortgage  or  at  any  time 
since. 

And  that  the  income  of  the  said  railroad  may  be  applied  to  the 
payments  of  the  principA&and  interest  of  the  bonds  secured  by  the 
said  mortgage,  and  that  the  defendants,  and  each  of  them,  and  all 
persons  claiming  under  them  either  before  or  since  the  commence- 
ment of  this  suit  may  be  barred,  and  foreclosed  of  all  right,  claim 
or  lien,  and  equity  of  redemption  in  the  said  mortgaged  premises, 
and  that  the  said  railroad,  together  with  all  its  franchises,  and  pro- 
perty, real  and  personal  in  the  said  mortgage  described,  and  set 
forth  or  intended  so  to  be,  may  be  sold  under  the  order  and  judg- 


(is) 

ment  of  this  Court,  and  the  proceeds  applied  to  the  payment  of 
the  csts  and  expenses  of  this  action,  and  any  taxes,  and  assessments 
that  may  he  upon  the  property,  and  then  to  the  bonds  hereinbefore 
described,  together  with  the  interest  thereon,  and  in  case  the  pro- 
ceeds of  such  sale  be  insufficient  to  pay  all  such  bonds,  and  interest 
thereon,  in  full,  that  then  they  be  paid  ratably  in  whosoever  hands 
they  mav  be;  and  in  ease  the  proceeds  of  said  sale  shall  be  in  excess 
of  the  costs  and  expenses,  and  the  principdcg^a-nd  interest  of  said 
mortgage  that  the  surplus  may  be  applied  to  the  payment  of  any 
subsequent  liens,  and  the  balance  over  to  the  said  railroad  com- 
pany, and  that  the  defendants,  and  each  of  them  be  adjudged  to 
abide,  and  perform  the  orders  of  this  Court  in,  and  about  the  pre- 
mises, and  that  your  orators  may  have  such  other  or  further  relief 
or  both  in  the  premises  as  to  this  Court  may  seem  meet. 

Chas.  E.  Whitehead,  of  Counsel. 

Note. — The  defendant.  Rufus  Y.  McAden,    is   required  to  an- 
swer all  the  interrogatories  in  this  bill  contained. 
United  States  of  America,  State  of  North  Carolina  : 

Whereas,  On  the  19th  day  of  December,  A.  D.,  1866,  the 
General  Assembly  passed  and  ratified  an  Act  the  second  section  of 
-  which  is  the  following  words  :  "Entitled  an  Act  to  enhance  the 
value  of  the  bonds  to  be  issued  for  the  completion  of  the  Western 
North  Carolina  Railroad,  and  for  other  purposes."  Section 
Second  :  Be  it  further  enacted  that  the  President  and  Directors 
of  the  Western  North  Carolina  Railroad  Company  be  and  they  °r  gage 
are,  hereby  authorized  and  empowered  to  issue  bonds  of  the  com- 
pany, and  running  for  such  term  of  years  as  they  may  deem  expe- 
dient, and  bearing  interest  at  rate  not  greater  than  eight  per  cent, 
per  annum,  and  to  make,  execute  and  deliver  a  deed  or  deeds  of 
mortgage,  conveying  the  whole  or  portion  of  the  right,  titles  and 
interest  of  the  company  in  any,  or  all  the  estate  both  real  and  per- 
sonal, belonging  to- said  company  or  in  any  manner  pertaining  to 
the  same,  to  the  purchase  or  purchasers  of.  said  bonds  of  the  com- 
pany, and  conditioned  for  the  payment  of  said  bonds  at  maturity, 
and  also  to  pledge  the  profits  of  said  company  or  so  much  thereof 
as  mav  be  necessary,  for  the  payment  of  the  interest  on  said  bonds 
as  it  falls  due,  and  said  bonds  shall  be  issued  by  said  President  and 
Directors  whenever  it  shall  appear  to  them  necessary  for  the  com- 


(i6) 

pletion  of  said  road  to  raise  other  funds  in  addition  to  the  State's 
subscription,  and  the  proceeds  arising  from  the  sale  of  said  bonds 
shall  be  applied  for  the  purpose  of  finishing  the  road  to  its  western 
terminus; 

And  wherfas,  at  a  called  meeting  of  the  stockholders  of  the 
Western  North  Carolina  Railroad  Company,  held  at  Statesville, 
in  the  county  of  Iredell  in  said  State  of  North  Carolina,  on  the 
21st  day  of  February,  A.  D.,  1867,  the  said  stockholders  in  full 
meeting,  and  being  duly  called  together  for  that  purpose,  ratified, 
and  duly  accepted,  and  adopted  said  act  as  an  amendment  to  the 
charter  of  said  company. 

And  whereas,  the  President  and  Directors  of  the  said  Western 
North  Carolina  Railroad  Company  determined  that  it  was  neces- 
sary to  raise  other  funds  in  addition  to  the  State's  appropriation, 
and  subsci'iption  of  stock  and  other  assets  of  the  company  to  com- 
plete said  railroad  to  its  western  terminus  at  Asheville,  and  at  the 
meeting  of  said  Board,  the  said  President  and  Directors  of  the 
Western  North  Carolina  Railroad  Company  duly  called  and  held 
at  Morganton  on  the  8th  day  of  January,  A.  D.,  1S70,  did  resolve, 
to  issue  fourteen  hundred  thousand  dollars  of  coupon  bonds  of  said 
company  under  the  authority  of  the  said  amended  charter  as  amend- 
ed by  said  act  of  19th  December,  A.  D.,  1866,  the  bonds  to  bear 
eight  per  cent,  interest  payable  every  six  months,  and  to  run  for 
twenty  years,  the  bonds  to  be  of  the  denomination  of  one  thousand 
dollars,  and  one  hundred  dollars,  all  to  be  secured  by  a  mortgage, 
or  deed  in  trust  on,  all  the  l'oad,  road  bed,  charter,  iron,  cars,  en- 
gines, depots,  rights  of  way,  franchises,  rights,  credits,  and  all  pro- 
perty, real  and  personal  belonging  to  said  railroad  company,  in- 
cluding all  the  railroad  in  running  as  well  as  that  graded,  and  be- 
ing graded,  including  the  entire  line  from  Salisbury  to.  Asheville, 
and  all  the  property,  real  and  personal  that  the  said  company  has, 
and  owns,  and  any,  and  all  that  they  may  have,  or  acquire  in  fu- 
ture, as  appurtenant  to  said  railroad  conditioned  for  the  payment 
of  said  bonds  at  their  maturity,  and  pledging  the  profits  arising 
from  the  road  for  the  payment  of  the  interest  from  time  to  time  as 
it  falls  due.  And  it  is  ordered  by  said  President  and  Directors  to 
make  said  mortgage  or  deed  in  trust  to  Tod  R.  Caldwell,  of  the 
county  of  Burke,  in  the  State  of  North  Carolina,  and  Henry  Clews, 
of  the  city  and  county  and  State  of  New  York,  as  trustees    for  the 


(*7) 

use  and  benefit  of  the  purchasers  or  holders  oF  said  mortgage  bonds, 
and  that  the  bonds  be  made  payable  to  Kemp  P.  Battle,  of  the  city 
of  Raleigh,  in  the  State  of  North  Carolina,  or  bearer,  and  payable 
in  the  citv  of  New  York;  and  that  coupons  be  attached  payable 
half  yearly  at  the  rate  of  eight  per  cent  per  annum; 

Now  therefore,  this  Indenture  made,  and  executed  this  1st 
day  of  March,  A.  D.,  1870,  between  the  Western  North  Carolina 
Railroad  Company,  a  corporation  duly  incorporated  under,  and  by 
virtue  of  the  laws  of  the  State  of  North  Carolina,  and  located,  and 
doing  business  within  said  State,  thereto  authorized  by  the  acts  of 
the  General  Assembly  of  the  State  of  North  Carolina,  and  by  the 
resolution  of  the  stockholders  of  said  incorporation,  and  by  the  re- 
solution, and  order  of  the  President  and  Directors  as  aforesaid  of 
said  incorporation,  party  of  the  first  part,  and  Tod  R.  Caldwell, 
of  the  town  of  Morganton,  in  the  county  of  Burke,  and  State  of 
North  Carolina,  and  Henry  Clews,  of  the  citv  and  county  of  New  „ 

J  ~  -  Mortgage. 

York,  in  the  State  of  New  York,  parties  of  the  second  part,  wit- 
nessed! that  the  said  party  of  the  first  part  for  the  purpose  of  se- 
curing the  payment  of  the  bonds  and  the  interest  due,  and  to  be- 
come due  thereon,  as  the  same  shall  become  due  and  payable  ;  which 
bonds  are  issued  by  the  said  party  of  the  first  part  by  virtue  of  the 
provisions  of  the  law  herein  set  out,  and  by  virtue  of  the  resolutions 
of  the  stockholders,  accepting  the  same,  and  by  the  order  of  the 
president  and  directors  of  the  same  as  above  set  forth.  Which 
bonds  amount  in  the  aggregate  to  the  sum  of  fourteen  hundred 
thousand  dollars,  bearing  interest  at  the  rate  of  eight  per  cent,  per 
annum,  payable  semi  annua'ly.  Both  principfo^-and  interest  being 
piyable  in  the  City  of  New  York,  of  which  twelve  hundred  are  of 
the  denomination  of  one  thousand  dollars  each,  twenty  hundred  of 
tne  denomination  of  one  huudred  dollars  each,  and  all  bearing  even 
date  with  these  present",  and  payable  on  tiie  first  day  of  January, 
A.  D.,  Eighteen  Hun  Ired  and  Ninety,  with  interest  due  1st  day  of 
January  and  1st  day  of  July  in  each  and  every  yea*,  and  of  the  tenor 
words  and  figures  fallowing,  viz. : 

united  States  of  America,  State  of  North  Carolina  : 
First  mortgage  bonds  $1,000,  or  $100.  No- 

For  value  received,  on  the  first  day  of  January,  Eighteen  Hun- 
dred and  Ninety,  the  Western  North  Carolina  Railroad  Company 
promises  to  pay  to  Kemp  P.  Battle,  or  bearer,  in   the  City  of  New 


'  (i8) 

York,  one  thousand  dollars,  or  one  hundred  dollars,  with  interest 
thereon,  at  the  rate  of  eight  per  cent,  per  annum  ;  which  said  inter- 
est shall  be  payable  semi-annually  in  the  said  City,  on  the  1st  days 
of  January  and  July  in  each  and  every  year  hereafter,  upon  the  sur- 
render of  the  proper  coupons  thereto  attached.  The  holder  of  this 
bond  is  secured  by  a  first  mortgage  duly  executed  and  delivered  to 
Henry  Clews  and  Tod  R.  Caldwell,  conveying  to  them  the  Railroad, 
one  hundred  and  forty  miles  in  length,  extending  from  the  city  of 
Salisbury  to  the  town  of  Asheville,  in  the  State  of  North  Carolina, 
and  all  the  property  of  the  said  Company  at,  and  between,  said  ter 
mini,  in  trust  for  the  full  and  final  payment  of  this  bond,  and  such 
others  as  may  be  issued  by  said  Cmipmy,  not  to  exceed  one  million 
and  four  hundred  thousand  dollars,  under  authority  of  an  act  of  the 
General  Assembly  of  the  State  of  North  Carolina,  ratified  the  19th 
day  of  December,  A.  D.,  1866,  and  accepted  by  said  stockholders  in 
Mortgage.  accordance  with  their  charter,  on  the  21st  day  of  February,  A.  D., 
1867. 

This  bond  shall  not  be  valid  until  if  shall  be  authenticated  by  cer- 
tificate of  the  trustees  or  their  successors,  endorsed  thereon.  In 
.  witness  whereof,  the  said  Company  have  caused  this  bond  to  be  at- 
tested by  the  signatures  of  their  president  and  secretary,  and  sealed 
with  their  corporate  seal  in  the  city  of  Salisbury,  North  Carolina, 
this,  first  day  of  March,  Eighteen  Hundred  and  Seventy. 

[seal.]  J.    J.   Mott,   President. 

Attest :     H.  C.  Cowles,  Secretary. 

The  proper  coupons  being  attached  to  each  bond  for  the  payment 
of  the  semi-annual  interest  to  become  due  thereon,  and  the  same  duly 
signed  by  the  treasurer  of  the  said  party  of  the  first  part,  and  each 
and  every  one  of  said  bonds  being  endorsed  as  follows : 

The  Western  North  Carolina  Railroad  Company  :  First  mortgage 
bonds,  priricipJelpayable  1st  of  January,  1890.  No.  $1,000,  or  $100. 
Interest  8  per  cent,  payable  1st  of  January  and  1st  of  July  in  each 
year,  in  the  City  of  New  York,  and  having  upon  it  the  following 
trustee  certificate  : 

We  hereby  certify  that  this  is  one  of  a  number  of  first  mortgage 
bonds  amounting  in  the  aggregate  to  fourteen  hundred  thousand 
dollars  secured  by  the  deed  in  trust  within  mentioned,  executed  and 
delivered  by  the  Western  North  Carolina  Railroad  Company  to  us 
as  trustees. 

Trustee. 
Trustee. 


::} 


r*9) 

In  consideration  of  the  priimises  aforesaid,  as  well  as  for  and  in 
consideration  of  the  sum  of  one  dollar  to  the  party  of  the  first 
part  in  hand  p:iid  by  the  parties  of  the  second  part,  •  at  and  before 
signing,  sealing  and  delivering  of  these  presents.  The  receipt 
whereof  is  hereby  acknowledged,  and  in  order  to  secure  the  payment 
of  principie-and  interest  of  the  bonds  as  aforesaid  issued,  or  to  be 
issued  as  herein  provided  and  accepted,  and  every  part  of  said  prin-  j|ortsagei 
cip&Land  interest  as  the  same  shall  become  due,  and  payable  accord 
ing  to  the  tenor  and  effect  of  said  bonds  and  coupons  thereto  at- 
tached,  hath  granted,  bargained,  sold,  aliened,  transferred  and  con- 
veyed, and  by  these  presents  doth  grant,  bargain,  sell,  alien,  transfer 
and  convey  unto  the  said  parties  of  the  second  part  as  joint  tenants, 
and  not  as  tenants  in  common,  and  to  the  successor,  or  successors, 
or  survivor,  of  them  in  trust,  and  to  the  assigns  of  them,  the  said 
parties  of  the  second  part,  and  to  the  assigns  of  the  successor,  or 
successors,  or  survivor  of  them  in  trust,  all  and  singular,  the  Rail 
road  of  the  said  party  of  the  first  part,  known  and  designated  as^the 
Western  North  Carolina  Railroad,  extending  from  the  terminus 
thereof,  in  the  city  of  Salisbury,  to  the  terminus  thereof,  at  Ashe- 
ville,  in  the  State  of  North  Carolina,  and  being  about  one  hundred 
and  forty  miles  in  length,  embracing  all  the  railways,  ways,  rights 
of  way,  depot  grounds  and  other  land,  all  tracks,  bridges, 
viaducts,  culverts,  fences  and  other  structures,  all  depot  houses, 
station  houses,  and  other  buildings,  all  machine  shops  and  other 
shops,  whether  now  held,  or  hereafter  built  or  acquired,  fur  use  in 
connexion  with  the  said  Railroad  hereinafter  described,  and  inclu- 
ding also  all  locomotives,  tenders,  cars  and  other  rolling-stock,  or 
equipments,  and  all  machinery,  implements,  tools,  fuel,  and  tools  for 
construction,  on  any  of  its  equipments,  or  appurtenances,  whether 
now  held,  or  hereafter  acquired,,  all  of  which  things  are  hex'eby  de- 
clared to  be  appurtenances  and  fixtures  of  said  Railroad,  together 
with  all  corporate  franchises  necessary  and  proper  to  enable  the 
parties  of  the  second  part,  their  assigns  and  successors,  to  have, 
hold,  use,  repair  and  operate  said  Railroad,  together  with,  all  'and 
singular,  the  tenements,  hereditaments  and  appurtenances,  franchis- 
es, and  rights  thereto  belonging,  and  the  reversions,  remainders, 
rents  and  profits  thereof,  to  have  and  to  hold  the  said  Railroad, 
equipments  and  appurtenances  and  property  unto  the  said  parties 
of  the  second  part,  as  joint  tenants,  and  not   as  tenants  in  common 


(20) 

And  to  the  successor,  or  successors,  or  survivor  of  them,  in  trust 
and  to  the  assigns  of  them,  the  said  parties  of  the  second  part,  in, 
trust,  and  to  their  assigns  and  to  the  survivor  or  successors,  and  the 
Mortgage.  assigns  of  such  in  trust,  and  to  the  ouly  proper  use  and  behoof  of 
the  said  parties  of  the  second  part,  and  to  their  survivor,  successor 
or  successors  of  them  in  trust,  an  1  their  assigns,  in  trust,  neverthe 
less,  to  have  and  to  hold  the  same  upon  the  conditions  and  for  the 
purposes  hereinafter  generally  expressed  ;  to  wit : 

ARTICLE   FIRST. 

Until  default  shall  be  mide  in  the  payment  of  the  principle,  or 
interest,  of  said  bonds,  or  some  or  any  of  them,  or  until  default  shall 
be  made  in  respect  to  something,  by  these  presen's  required  to  be 
done  or  kept  by  said  party  of  the  first  part,  the  said  party  of  the 
first  part  shall  be  suffered  and  permitted  to  possess,  control  and  op 
erate  the  said  Railroad,  and  every  part  and  parcel  thereof,  and  its 
appurtenances.  And  to  take  and  use  the  tolls,  rents,  incomes  and 
profits  of  said  R  dlroad  as  fully  as  if  this  deed  had  not  b^en  made. 
ARTICLE   SECOND. 

In  case  default  shall  be  male  in  the  payment  of  any  half  year's 
interest  on  any  of  the  aforesaid  bonds,  at  the  time  and  in  the  man- 
ner in  the  coupons  issued  therewith,  provided  the  said  coupons  hav 
ing  been  presented  and  payment  thereof  demanded,  and  in  Ysasesnch 
default  shall  continue  three  months  after  said  coupons  shall  have 
become  due  and  payable,  and  demanded  then  thereupon,  the  prin 
ciple  of  all  the  bonds  secured  hereby  shall  become  immediately  due 
and  payable,  an3'thing  contained  in  the  said  bonds,  or  herein,  to  the 
contrary,  notwithstanding. 

ARTICLE  THIRD. 

The  party  of  the  first  part  shall  from  time  to  time,  as  the  same 
may  become  necessary,  when  thereto  requested  by  the  trustees,  exe- 
cute all  such  further  deed,  or  deeds  of  conveyance  for  the  better  se- 
curing to  the  trustees  herein  expressed.  The  said  Road  and  appur 
tenances  and  equipments,  and  all  other  interest,  or  property,  here- 
after to  be  acquired  or  owned  in  any  way. 

ARTICLE  FOURTH. 

If  the  party  of  the  first  part  shall  well  and  truly  pay  the  princi- 

pteumd  interest  of  said  bonds,  and  the  interest  due  thereon,  accord- 

Mcrtgage.        jng  to  tjie  true  mtent  and  meaning  of  the  said  bonds, and  this  deed, 


(21) 

and  shall  in  all  things  observe,  and  keep  all  the    agreements,  and 
understandings  of  these  presents,  then,  and    in  that    case,    all    the 
estate,  rights,  title,  and  interest  of  the  parties  of  the    second    part, 
and  their  survivor,  and  successors  in  the  trust  hereby  created,  shall 
cease,  and  to  terminate,  otherwise,  to  remain  in  full  force  and  virtue. 
ARTICLE  FIFTH. 
It  shall  be  the  duty  of  said  trustees,  or  such  as  shall  be  in  office, 
to  take  appropriate  proceedings  in  any  Court    having  jurisdiction 
thereof,  by  way  of  foreclosure,  or  otherwise,  to  enforce  the  rights        • 
of  the  bondholders.     Provided,  however,  that   such    enforcement 
of  the  rights  of  the  bondholders  shall  be  upon    the   requisition  in 
writing,  of  not  less  than  five  bondholders,  to  whom,  at    least,     ten 
thousand  dollars  worth  of  said  bonds  belong  in  their  own  right. 
ARTICLE  SIXTH. 

It  is  mutually  agreed  that,  the  word  trustee  as  used  herein,  shall 
be  construed  to  mean  the  trustee,  or  trustees  for  the  time  being, 
whether  either,  or  all,  be  original,  or  new,  and  when  any  vacancy 
shall  exist  to  mean  the  surviving,  or  continuing  trustees,  and  such 
trustee  during  any  such  vacancy  be  competent  to  exercise  all  of 
the  powers  by  these  presents  granted  to,  or  conferred  upon  the 
parties  of  the  second  part;  And  it  is  mutually  agreed  that  neither 
of  said  trustees  shall  in  any  manner  be  responsible  for  any  default, 
or  misconduct  of  the  other  trustee;  Further,  that  said  trustees 
shall  be  entitled  to  just  compensation  for  any  services  rendered,  to 
be  paid  by  the  party  of  the  first  part;  That  either  of  said  trustees, 
or  any  of  their  successors,  may  resign,  and  discharge  himself  from 
the  trusts  created  by  these  presents,  by  notice  in  writing.,  Xo  the 
party  of  the  first  part,  and  to  the  surviving  trustee  (if  there  be  such) 
for  thirty  days  before  such  resignation  shall  take  effect,  or  such 
shorter  time  bs  they  may  accept  as  adequate  notice;  that  either,  or 
both,  of  said  trustees  may  be  removed  by  the  vote  of  the  holders 
of  a  majority  of  the  bonds  that  may  have  been  actually  sold,  such 
vote  being  had  at  a  meeting  of  the  bondholders,  convened  on  a 
call  by  the  holders  of  not  less  than  one  hundred  thousand  dollars 
in  interest  in  said  bonds,  on  notice  of  thirty  days,  published  in  two 
newspapers,  one,  published  in  the  city  of  New  York;  and  one,  Mortgage, 
published  in  Raleigh,  North  Carolina;  and  the  said  votes  being 
attested  under  the  hands  of  the  persons  so  voting  :  That  in  case 
of  a  vacancy  in  said  trusteeship  from  any  cause,    a  successor   may 


(22) 

be  appointed  in  manner  following,  to  wit  :  such  vacancy  m  \y  be 
filled  by  the  surviving  trustee,  together  with  the  party  of  the  first 
part;  in  case  of  a  disagreement  between  such  remaining  trustee, 
and  the  party  of  the  first  part,  the  same  may  be  settled  by  an 
umpire,  to  be  chosen  bv  said  trustee,  and  the  party  of  the  first  part, 
and  appointment  of  such  umpire  shall  be  conclusive;  and  in  default 
of  such  agreement  and  appointment,  the  Superior  Court  of  any  of 
the  counties  through  which  the  said  railroad  passes,  at  the  instance 
of  any  party  in  interest  or  petition. 

Any  appointment  of  trustee,  or  trustees,  made  in  either  of  these 
modes  above  indicated  shall  be  valid,  and  operative  to  all  intents, 
and  purposes,  and  the  trustee  or  trustees  so  appointed  shall  there- 
upon become  subrogated  to  all  the  rights,  duties,  privileges,  and 
responsibilities  of  the  original  trustee,  or  trustees,  as  specified  and 
conferred  in,  and  by,  these  presents;  During  the  time  intervening 
between  the  death,  resignation,  or  removal  of  any  trustee,  and  the 
appointment  of  his  successor,  the  acts  of  the  remaining  trustee 
shall  in  all  respects  be  considered,  and  held  as  valid  and  binding, 
as  if  both  of  the  trustees  herein  contemplated,  and  named,  were  in 
the  full  exercise  of  their  office  and  discharge  of  their  duties; 

And  it  is  hereby  mutually  agreed  and  understood  between  the 
parties  that  if  at  any  time  proceedings  in  Court  for  foreclosure,  or 
otherwise  by  said  trustees,  or  successors,  and  judgment  rendered 
therein,  for  any  defa  .It  on  part  of  the  party  of  first  part,  and  after 
full  payment  of  such  judgment  by  sale  of  railroad,  and  appurten- 
ances, and  .on  payment  of  all  said  bonds,  interest,  costs  and  charges, 
then  to  pay  over  any  surplus  to  the  party  of  the  first  part,  or  to  the 
assigns  of  said  corporation. 

In  witness  whereof,  the  said  party  of  .the  first  part  hath    caused 

its  coporate  seal  to  be  hereunto  affixed,  and    these  presents    to  be 

signed  by  its  President,  and  attested  by  its  Secretary  at  the    pri'ii- 
Complaint.        cipal  office  of  gaicj  party  of  ^  firgt  p-^  and  jn  the  tQWn  Qf  States- 

ville  in  the  State  of  North  Carolina,  this   ist  day   of  March,  One 
Thousand  Eight  Hundred  and  Seventy. 

[Corporate  Seal.]  J.J.  Mott,  President. 

Attest  :     H.  C.  Cowles,  Secretary. 

Signed,   sealed  and  delivered  in  the  presence  of 


(23) 

TRUSTEES  ACCEPTANCE. 

We,  the  trustee?,  named  in  the  foregoing  Deed  of  Trust,  or  Mortgage,  do 
hereby  signify  our  acceptance  of  said  office  of  trustees,  with  all  the  powers,  and 
duties,  and  for  the  purpose  in  said  Deed  of  Trust,  or  Mortgage,  mentioned  and 
contained. 

Witness  our  hands  and  seals  this  ist  day  of  March,  Eighteen  Hundred  and 
Seventy.  Tod  R.  Caldwell,  [SEAL.] 

Henry  Clews,  [SEAL.] 

In  presence  of  N.  W.  Woodfin,  Henry  Clews.  L.  A.  Taylor,  T.  R.  Caldwell. 

State  of  Maryland,   City  of  Baltimore  : 

Be  it  remembered  that  on  the  second  day  of  April,  in  the  year  of  Our  Lord, 
One  Thousand  Eight  Hundred  and  Seventy,  before  me  comes  N.  W.  Woodfin, 
the  subscribing  witness  to  the  foregoing  instrument,  tp  me,  personally  known, 
who  on  oath  duly  proves  the  execution  thereol,  by  Henry  Clews,  for  the  pur- 
poses therein  expressed. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  official    seal  at  Baltimore, 
the  day  and  year  aforesaid.  W.   W.  Latimir, 

A  Commissioner  for  North  Carolina,  residing  in  Baltimore  City.  Maryland. 

State  of  North  Carolina,  Burke  C'ou?ity  : 

Be  it  known  that  on  this  the  nth  day  of  April,  A.  D.,  1870,  personally  ap- 
peared before  me,  F.  D.  Irvin,  Probate  Judge  for  Burke  county,  and  State  of  Probate  of 
North  Carolina,  J.  J.  Mott,  President  of  the  Western  North  Carolina  Railroad,  MortSaSe- 
and  Tod  R.  Caldwell,  each  for  himself,  who  do  say  and  acknowledge  that  thev 
did  sign  the  foregoing  instrument  for  the  purpose  therein  contained,  and  that 
the  signatures  are  in  their  respective  genuine  hand  writing,  and  is  their  act  and 
deed.  In  witness  whereof  I  do  hereunto  set  my  hand  and  seal  of  office  at  office 
in  Morganton  on  the  day  and  year  above  written. 

[Seal.]  F.  D.  Irvin, 

Probate  Judge  for  Burke  County. 

State  of  North  Carolina,)    Registfr  Office. 
Buncombe  County.         ) 

This  is  to  certify  that  the  foregoing  and  within  Deed  of  Trust  or  Mortgage, 
and  certificates  of  Probate,  was  this  day  received  at  3  o'clock  P.  M.,  and  regis- 
tered in  Book  33,  Page  225,  at  this  office  in  Asheville,  this  the  13th  day  of 
April,  A.  D.,  1870.  W.  S.  Roberts,  Register 

of  Buncombe  County. 

State  of  North  Carolina,  )    D    ^    OTrt„,     r^™^ 
t»t   t^  /->  r  Registers  Office. 

McDowell  County.         ) 

This  is  to  certify  the  foregoing  and  within  Deed  of  Trust  or  Mortgage,  and 
certificates  of  Probate,  was  this  day  received  at  2^  o'clock  P.  M.,  and  register- 
ed in  Book  7,  Page  116".  at  office  in  Marion  this  ist  day  of  June,  1872. 

A.  L.  Finley,  Register 
for  McDowell  County. 

State  of  North  Carolina,  )   Register's  Office, 
Iredell  County.  )     June  3rd,  1872. 

This  is  to  certify  that  the  foregoing  Mortgage  and  the  certificates  of  the 
Judge  of  Probate,  was  this  day  received  and  duly  registered  at  6  o'clock  P.  M., 
in  Book  No.  4,  Page  888.  W.  D.  Summers,  R.  D. 

for  Iredell  County. 


State  of  North  Carolina,)    Register's  Offce, 
Catawba  County.  )     June  4th,  1872. 

This  is  to  certify  that  the  foregoing  Mortgage  and  the  certificates  of  the  JudgP 
of  Probate  was  duly  recorded  and  duly  registered    at   nine   o'clock    A.    M.,  in 
Probate    of      Book  8,  Page  236.  J.  M.  Brown.  Register  of  Deeds, 

Mortgage.  for  Catawba  County. 

State  of  North  Carolina.)   Register's  Office 
Burke  County.  J     June  8th,  1882. 

This  is  to  certify  that  the  foregoing  Mortgage  and  certificates  of  Probate  was 
this  day  receis'ed  and  duly  registered  at  12  o'clock  M.,  in  Book  C,  Page  261. 

W.  T,  Horbivson.  Register 
of  Burke  County. 

State  of  North  Carolina,)   Register's  Offce, 
•Rowan  County.  )'    June  14,  A.  D.,  1872. 

This  is  to  certify  that  the  foregoing  Mortgage  or  Deed  in  Trust  and  certifica- 
tes of  Probate  is  this  day  received  at  4  o'clock  P.  M.,  and  duly  registered  in 
Book  No.  46,  Page  304.  Obadiah  Woodson,  Register  ot  Deeds, 

/  for  Rowan  County. 

And  at  rule  day  in   October,   1872,   the   following  answer   of  the 
Western  North  Carolina  Railroad  Company  and  A.  H.  Erwin,    John 
Rutherford,  Hiram  Kelly,  James  Greenlee,  Mary  Carson,  to  wit,  was 
filed : 
Circuit  Court  of  the  Uuited    States  for  the   Western  District  of 

North  Carolina  : 
Henry  Clews  and  Hiram  Sibley, 

against 
The  Western   North  Carolina  Railroad  Com- 
pany, (Eastern  Division,)  Tod  R.  Caldwell, 

Rufus  Y.    McAdeu,    The    First    National  \ 

Bank  of  Charlotte,    John   Rutherford,  Hi 

ram    Kelly,    Thos.    Y.     Greenlee,     James 

Greenlee.  Mary  Carson,    A.  H.  Erwin    and 

W  H  Wilson,  assignees  of  Bank  Cape  Fear. 

Answer  of  w.  ^°  ^ne  Honorable,  the  Judges  of  the  Circuit  Court  of  the  United 
n.c.  r.  r.  Co     States,  within  and  for  the  Western   District  of   North  Carolina, 

sitting  in  equity  : 

The  answer  of  the  Western  North  Carolina  Railroad  Company, 
one  of  the  defendants  to  the  bill  of  complaint  of  Henry  Clews  and 
Hiram  Sibley,  plaintiff,  filed  in  this  Court  against  said  defendant, 
Tod  R.  Caldwell,  Rufus  Y.  McAden,  First  National  Bank  of  Char- 
lotte, John  Rutherford,  Hiram  Kelly,  Thos.  Y.  Greenlee,  James 
Greenlee,  Mary  Carson,  A.  H.  Erwin,  and  N.  H.  D.  Wi'.son,  assignee 
of  the  Bank  of  Cape  Fear. 

Tlvis  defendant  reserving  all  rights  of  exception   to    the  said  bill, 


(  »5  ) 

for  answer  saith  that  it  is  trae  that  the  plaintiffs,  Henry  Clews  and 
Hiram  Sibley,  are  citizens  of  the  State  of  New  York,  and  that  this 
defendant,  the  Western  North  Carolina  Railroad  Company,  (Eastern 
Division,)  is  a  corporation  created  under  and  by  virtue  of  the  laws 
of  the  St *te  of  North  Carolina,  having  its  property  and  business  in 
said  State,  and  being  a  citizen  thereof,  and  that  the  other  defend- 
ants in  this  case  are  citizens  of  the  State  of  North  Carolina. 

This  defendant  admits  that  the  Western  N  >rth  Carolina  Railroad 
Company  was,  at  the  time  mentioned  in  said  bill  of  complaint,  and 
still  is,  a  corporation  created  under  and  by  virtue  of  an  act  of  the 
State  of  North  Carolina,  ratified  in  General  Assembly  of  said  State 
February  the  15th,  1855,  entitled  ''an  Act  to  incorporate  the  Western 
North  Carolina  Railroad  Company,"  and  of  a  law  of  the  State  of 
North  Carolina,  passed  and  ratified  by  the  General  Assembly  of  said 
State  on  the  19th  day  of  December,  1868,  entitle  1,  "an  Act  to  en- 
bance  the  value  of  the  bonis  to  bi  issued  for  the  completion  of  the 
Western  N  ath  Carolina  Railroad  and  for  other  purposes,"  and  of 
all  of  which  acts  were  accepted  by  the  stockholders  of  the  Company 
in  accordance  with  the  terms  of  of  the  charter,  and  of  the  divers  acts 
of  the  same  State,  amendatory  thereof,  with  the  power  conferred  by 
the  said  acts,  and  the  general  law  of  the  State  to  acquire  lands  for 
the  purpose  of  a  Railroad  from  the  town  of  Salisbury  to  some  point 
on  the  French  Broad  River  beyond  the  Blue  Ridge,  and  to  construct 
said  Railroad,  and  to  acquire  and  use  such  locomotives,  cars,  and 
chattels,  and  other  property  as  might  be  necessary  for  the  use  and 
operation  of  said  Road,  and  the  transaction  of  the  business  of  trans- 
porting property  and  passengers,  and  the  doing  of  such  other  busi- 
ness as  it  might  properly  do  in  connection  therewith. 

The  defendants  further  admit,  that  the  said  corporation  had  pow- 
er, at  the  times  designated  in  said  bill,  under  the  said  several  acts, 
and  the  general  laws  of  said  State,  to  borrow  such  sums  of  money 
as  might  be  necessary  for  constructing,  equipping,  completing,  fin- 
ishing, and  operating  said  Road,  and  for  the  purchase  of  loco- 
motives,  cars,  and  other  machinery  for  the  proper  running  and 
operating  said  Road,  and  for  that  purpose  it  was  author- 
ized and  empowered  to  issue  bonds  of  said  Company  for  such  term 
of  years  as  the  president  and  directors  might  deem  expedient,  bear- 
ing interest  not  greater  than  eight  per  cent,  per  annum,  and  to  make, 
execute  and  deliver  a  deed  or  deeds  of  mortgage,  conveying  a  whole  or 


(26) 

a  portion  of  the  rights,  titles  and  interest  of  the  C<  mpany,  in  any  or  all 
of  the  estate,  both  real  and  personal,  belonging  to  said  Company,  or  in 
any  manner  pertaining  to  the  same,  to  the  purchaser  or  purchaseis 
of  said  bonds,  and  conditioned  for  the  payment  of  said  bonds  at 
maturity,  and  that  snoh  bonds  should  be  issued  by  the  president  and 
directors  of  said  Company,  whenever  it  should  appear  to  them  ne- 
cessary, for  the  completion  of  said  Road,  to  raise  other  funds  besides 
the  stock  subscribed. 

The  defendant  admits  the  president  and  directors  of  said  Compa- 
ny took  the  necessary  steps  to  procure  the  lands  ne -essary   for  the 
roadway  of  said  Railroad,  and  have  constructed  and  equipped  a  Rail 
road  from  the  town  of  Salisbury  to  Old  Fort,  in  the  county   of   Mc 
Dowell,  a  distance  of  one  hundred  and  fourteen  miles,  or  thereabouts, 
and  which  is  in  full  operation  for  the    transportation  of   freight  and 
passengers  thereon,  and  the  said  Company  have  likewise  done  a  large 
portion  of  the  grading,  bridging,  and   work  upon    the  tunnels,    be- 
tween Old  Fort  and  the  French  Broad  River,   in    amount  near   one 
million  of  dollars.     That  in  the   prosecudon  of  the   affairs   of   said 
Company  in  the  construction  of  said  Railroad   it   became   necessary 
for  the  said  Company  to  borrow    for  the  purpose   of   constructing, 
equipping  and  completing  said  Railroad,  and  for  the  purpose  of  pay 
ing  contractors  for  work  already  done  on  the  line  of   said   Railroad, 
the  sum  of  fourteen  hundred   thousand   dollars.     And   it   appeared 
necessary  co  the  president  and  directors  of   the  i^aid  Company,   that 
for  the  completion  of  said  Road,  to  raise  the  said  amount  in  addition 
to  the  stock  subscribed.     That  in  order  to  procure  the   said  sum  of 
money  the  president  and  directors  of  said  Company  on  the   8th  day 
of  January,  1870,  in  pursuance  of,  and  in  conformity    with,    the   va- 
rious acts  of  the  General  Assembly  of  the  State  of   North  Carolina, 
incorporating  the  said  Company,  and  other  acts  amendatory  thereto, 
and  in  virtue  of  the  power  and  authority   given  such  corporation  by 
the  general  law  of  the  State,  did  resolve  to   issue   fourteen  hundred 
thousand  dolhrs  of  coupon  bonds  of   said  Company,  to  bear  eight 
per  cent,  semi  annual  interest,  and  to  run  for  twenty  years,  to  be  of 
the  denominations  of  one  hundred  dollars  and  one  thousand  dollars. 
And  did  order  that  the  same  shall  be  secured  by  a  mortgage  or  deed 
of  trust,  to  Tod  R.  Caldwell  and  Henry  Clews,  as  trustees,  on  all  the 
road,  road-bed,  charters,  iron,  cars,    engines,  depots,    right  of   way, 
franchises,  rights,  credits,  and   all   property,  real    and  personal,  be 
longing  to  said  Company,  including  all  of  said    Railroad  in  running, 


(27) 

as  well  as  that  graded  and  being  graded,  including  the  entire 
line  from  Salisbury  to  Asheville,  and  all  the  property,  real  and  per 
sonal,  which  the  Railroad  Company  had,  or  might  acquire  subse- 
quently, as  appurtenant  to  said  Railroad,  conditioned  for  the  pay- 
ment of  said  bonds  at  maturity,  and  pledging  the  profits  of  the 
Road  for  the  payment  of  the  interest  from  time  to  time,  as  it  might 
fall   due» 

That  in  pursuance  of  the  resolve  of  .the  said  Board  of  Directors, 
on  the  ist  day  of  March,  1870,  the  said  railroad  company  did  make 
and  execute  its  several  bonds  to  the  aggregate  amount  of  fourteen 
hundred  thousand  dollars  bearing  interest  at  eight  per  cent,  per 
annum,  pavable  semi-annually  on  the  first  days  of  January  and 
July  ineach'and  every  year,  both  principle  and  interest  payable  in 
the  city  of  New  York,  twelve  hundred  of  which  were  ot  the  deno- 
mination of  one  thousand  dollars  each,  and  twenty  hundred  of  the 
denomination  of  one  hundred  dollars  each,  all  bearing  date  March 
1st,  1S70,  and  payable  January  ist,  1S90,  with  coupons  attached, 
and  payable  as  charged  in  the  complainant's  bill.  That  the  bonds 
aforesaid  were  attested  by  the  signatures  of  the  President  and  Sec- 
retary of  the  said  company  with  its  corporate  seal  affixed  to  each 
bond,  and  the  coupons  aforesaid  were  assigned  by  the  treasurer  ot 
the  said  company,  and  that  the  said  bonds  were  authenticated  by 
the  endorsement  of  the  certificate  of  the  trustees  named  in  the 
mortgage,  viz  :  Tod  R.  Caldwell  and  Henry  Clews,  excepting 
five  hundred  bonds  of  the  denomination  of  one  thousand  dollars 
each,  which  did  not  h*ve  the  certilicate  of  Tod  R.  Caldwell,  one 
of  the  trustees,  and  which  are  nOW  held  by  the  plaintiff,  Hiram 
Sibley,  and  excepting  also  five  hundred  of  the  said  bonds  of  the 
denomination  of  one  hundred  dollars-  which  were  left,  and  are  yet 
in  the  hands  of  Henry  Clews,  trustee  as  aforesaid,  and  which  said 
last  named  five  hundred  bonds  have  not  been  issued  or  otherwise 
used  by  said  company. 

That  on  the  rst  day  of  March,  1S70,  the  said  Western  North 
Carolina  Railroad  Company  made,  and  executed  a  mortgage  deed 
of  that  date  between  said  company  as  parties  of  the  first  part,  and 
Tod  R.  Caldwell  and  Henry  Clews  as  trustees,  parties  of  the 
second  part,  which  is  referred  to  in  complainant's  bill,  and  its 
substance  and  effect  therein  stated  as  this  respondent  believes  cor- 
rectly, and  was  registered  in  the  several  counties  at  the  times  and 
in  the  manner  therein  charged. 


(2S) 

That  for  the  purpose  of  raising  money  for  the  use,  and  benefit 
of  the  company  in  the  construction  of  their  said  road,  and  for  pay- 
ing contractors  for  work  and  labor  done  on  sail  road  the  said  com- 
pany paid,  and  delivered  to  John  Malone  &  Co.,  one  hundred  and 
eightv-three  thousand  dollars  of  the  said  bonds,  which  were  re- 
ceived by  them  in  part  payment  of  a  debt  due  thern  as  contractors 
for  work  and  labor  done  on  said  road,  the  particular  numbers  and 
denominations  of  which  bonds  are  not  now  recollected,  but  which 
he  is  informed,  and  believes  to  be  the  same  bonds  now  held  bv 
Rufus  Y.  McAden,  one  of  these  defendants. 

The  defendant  likewise  was  indebted  to  Richard  Norris  &  Son, 
of  Philadelphia,  seventeen  thousand  dollars,  or  thereabouts  for  an 
engine,  and  other  machinery  for  the  use  of  the  company  of  a  date 
prior  to  the  war,  and  the  said  company  for  the  purposes  of  securing 
the  said  debt,  and  interest,  executed  to  the  said  Norris  &  Son,  three 
notes  of  equal  amount,  each  payable  at  six,  twelve  and  eighteen 
months  respectively,  aggregating  the  whole  amount  of  the  debt, 
and  interest,  and  at  the  same  time  as  a  farther  security  for  said 
debt  the  said  company  delivered  over,  pledged,  and  hypothecated 
twenty-four  thousand  dollars  of  the  said  mortgage  bonds,  to  be 
held  as  collateral  security  for  said  debt  of  the  company,  which  the 
defendant  is  informed,  and  believes  the  said  Norris  &  Son  yet  hold. 

That  the  said  railroad  company  was  indebted  to  the  Tredegar 
Company,  of  Richmond,  Virginia,  to  the  amount  of  about  seven 
thousand  dollars  for  chairs  and  spikes  used  in  the  construction  of  the 
said  railroad,  and  for  the  purpose  of  securing  the  same  the  note  of  the 
railroad  company  was  executed  to  the  Tredegar  Company  for  the 
amount  due,  and  ten  thousand  dollars  of  the  bonds  aforesaid  were 
pledged,  and  hypothecated  therewith  as  security  for  the  same. 

That  for  the  purpose  of  raising  money  to  discharge  interest  past 
due  upon  the  loans  made  in  New  York  the  company  borrowed  of 
the  North  Carolina  Railroad  Company  thirteen  thousand  dollars, 
and  executed  its  bond  for  that  amount,  and  pledged,  and  hypothec- 
ated thirty-nine  of  the  aforesaid  one  thousand  dollar  bonds  as  sec- 
urity for  the  same. 

That  for  the  purpose  of  raising  money  to  discharge  a  portion  of 
the  principle  and  the  accrued  interest  upon  the  loans  due  by  the  rail 
road  company  in  New  York,  the  company  borrowed  of  the  First 
National  Bank,  of  Charlotte,  about  eleven  thousand  dollars  at  one 
time,  and  five  thousand  dollars  at  a  subsequent  period,  for   which 


(29) 

two  loans  the  notes  of  the  company  were  given,  and  thirty-six 
thousand  dollars  of  the  mortgage  bonds  afore  aid  were  pledged, 
and  hypothecated  for  t':c  security  of  these  loans. 

That  the  defendant  the  Western  North  Carolina  Railroad  Com- 
pany borrowed  from  the  New  York  Warehouse  and  Security 
Company  in  the  year  1S70,  one  hundred  thousand  dollars,  and 
about  the  same  time  a  further  sum  of  one  hundred  and  twenty-five 
thousand  dollars  was  boiTowed  by  the  said  railroad  company  from 
the  New  York  Guaranty  and  Indemity  Company,  which  sums 
were  for  the  proper  uses  of  said  company,  to  wit  :  purchase  of  rails 
for  the  track,  and  other  needful  expenditures,  for  which  loans  the 
said  company  executed  bonds  with  the  usual  provisions  of  what 
is  called  a  "stock  note,"  and  hypothecated  six  hundred  thousand 
dollars  ot  the  aforesaid  mortgage  bonds,  and  placed  in  escrow  five 
hundred  thousand  dollars  more  of  the  same  bonds  which  has  not 
the  signature  of  Tod  R.  Caldwell,  trustee,  as  collateral  securit}-.  For 
these  loans  the  transaction,  by  agreement  of  the  lenders  of  the 
monev,  being  a  joint  one,  the  loans  after  falling  due,  were  re- 
newed bv  payment  of  a  portion  of  the  principle,  and  a  surrender 
of  fortv  three  of  the  completed  one  thousand  dollar  bonds,  leaving 
in  the  hands  of  the  Warehouse  and  Security  company,  and  the 
Gauranty  and  Indemnity  company,  five  hundred  and  fifty-seven 
thousand  dollars  of  the  complete  bonds,  five  hundred  thousand 
dollars  of  the  bonds  lacking  one  of  the  trustees'  signature  after  the 
maturity  of  the  notes,  say  6th  February,  1872,  the  total  debt  and 
lien  upon  the  bonds  was  about  two  hundred  and  forty-one  thous- 
and dollars.  Messrs.  Lancaster.  Brown  &  Company,  of  the  city  of 
New  York,  agreed  to,  and  did  lend  the  said  railroad  company  the 
exact  sum  then  due  the  Warehouse  and  Security,  and  the  Gaur- 
antv  and  Indemnity  Company  with  which  said  past  due  bonds 
were  liquidated, the  said  railroad  company  then  entering  into  bond 
■with  said  Lancaster,  Brown  and  Company  for  the  payment  of  the 
money  thus  advanced  within  thirty  days,  and  pledging,  and  hypo- 
thecating the  five  hundred  and  fifty-seven  complete  bonds  as  well 
as  the  five  hundred  incomplete  bonds  as  collateral  security  for  the 
same,  and  at  the  same  time  and  as  a  part  of  said  transaction. 

The  said  Western  North  Carolina  Railroad  Company  did  enter 
into  a  written  agreement  with  the  said  Lancaster,  Brown  &  Com- 
pany in  relation  to  the  sale  of  said  bonds  in  case  the  said  company 
should  fail  to  pay  the  amount  advanced  by  them  at  the  time  stipu- 


(30) 

lated,  which  will  more  fully  appear  by  reference  to  said  .  written 
agreement,  a  copy  of  which  is  hereto  appended  marked  "  A."  and 
prayed  to  be  taken  as  a  part  of  this  answer; 

That  the  foregoing  statement  truly  represents  the  manner,  and 
the  persons  to  whom  all  the  aforesaid  bonds  were  issued,  and  the 
purposes  for  which  they  were  issued  by  the  said  Western  North 
Carolina  Railroad  Company,  and  the  defendant  is  informed,  and 
believe  that  all  of  the  said  parties  to  whom  any  and  all  of  said 
bonds  were  issued  still  hold  the  same,  in  the  same  manner,  and  for 
the  same  purposes  as  hereinbefore  stated,  except  the  said  John  Ma- 
lone  &  Company,  who  have  transferred  theirs  to  R.ufus  Y.  Mc- 
Aden  aioresaid,  and  those  hypothecated  with  Lancaster,  Brown  & 
Company,  which  this  defendant  is  informed,  and  believes  the  said 
Lancaster,  Brown  &  Company  have  sold  under  the  power  and 
authority  given  them  in  their  written  agreement  aforesaid  as  shown 
by  exhibit  "  A,"  and  that  the  defendant  did  not  sell  any  of  the 
bonds  to  plaintiff  Sibley;  That  all  of  the  said  bonds  now  claimed 
in  said  bill  as  the  property  of  Hiram  Sibley  are  the  same  bonds 
pledged,  and  hypothecated  to  the  said  Lancaster,  Brown  &  Co 

The  defendant  admits  that  none  of  the  said  bonds  so  issued  by 
the  railroad  company  or  the  interest  accruing  thereon  so  secured 
by  the  said  mortgage  deed  have  been  paid,  and  that  the  principle, 
and  interest  attached  of  .ill  the  said  bonds  is  yet  due,  and  owing 
by  the  company. 

The  defendant  admits  that  the  interest  due  prior  to  March  1872, 
upon  the  said  bonds  represented  to  be  held  and  owned  by  the 
plaintiff  Hiram  Sibley,  was  duly  demanded  on  the  14th  day  of 
March,  1S72,  from  the  President  of  the  said  company  on  presenta- 
tion of  the  coupons  annexed  to  said  bonds,  and  payment  thereof 
refused  for  the  reason  that  the  said  company  had  no  funds  with 
which  to  pay  the  same,  and  that  payment  thereof  has  not  been 
made,  but  that  the  same  remains  wholly  due  and  unpaid. 

The  defendant  admits  that  the  Bank  of  Cape  Fear  did  obtain  a 
judgment  in  Buncombe  Superior  Court  in  the  year  1871,  for  about 
twenty  one  thonsand  dollars,  and  that  attorneys  of  the  said  Bank  did 
insist  upon  the  collection  of  the  same,  even  by  a  sale  of  the  franchise 
and  other  property  of  this  defendant,  and  that  this  defendant,  through 
its  president,  Sam'l  McD.  Tate,  sought  and  effected  a  compromise  of 
the  amount  of  said  judgment  with    Ckarles  M.  Stedman,   agent  and 


(30 

attorney  tor  said  Bank,  whereby  he  agreed  to  accept  ten  thousand 
fonr  hundred  dollars  as  a  full  discharge  of  said  debt,  and  did  further 
agree  that  in  case  the  defendant  could  not  raise  the  funds  necessary 
to  pay  the  said  sum  of  ten  thousand  four  hundred  dollars,  and  he 
should  be  forced  to  sell  the  said  Koad  and  its  franchises,  that  he, 
the  said  Stedman,  would  bid  it  off,  and  would  thereafter  transfer  the 
same  to  Sam'l  McD.  Tate,  in  trust  for  the  creditors  of  the  Railroad 
Company,  and  the  remainder,  if  any,  to  the  stockholders  upon  re 
ceiving  the  said  sum  of  ten  thousand  four  hundred  dollars  due  the 
Bank  of  Cape  Fear  under  the  compromise.  After  this  agreement 
and  before  the  sale,  the  president  of  the  Road  had  an  interview  with 
the  defendant,  Rufus  Y.  McAden,  and  informed  him  of  the  agree 
ment  made  with  the  agent  of  the  Bank,  when  he  advised  the  presi- 
dent, as  a  lawyer,  that  he  had  better  modify  his  contract  with  the 
agent  of  the  Bank,  and  have  property  transferred  to  some  other  in- 
dividual than  Sam'l  McD.  Tate,  who  was  the  president  of  the  Com- 
pany, whereupon,  upon  further  conference  with  the  said  agent  of 
the  Bank,  at  the  suggestion  of  the  president,  did  agree  that  the  said 
agent  should  transfer  his  bids  to  several  of  the  large  and  prominent 
creditors  of  the  Railroad  Companj7,  instead  of  Sam'l  McD.  Tate,  and 
the  said  Stedman  as  agent  aforesaid,  did  then  and  there  execute  and 
deliver  to  said  McAden  a  written  agreement  to  that  effect,  and  which 
said  paper  writing  is  now  in  possession  of  the  said  McAden,  as  this 
defendant  is  informed  and  believes,  and  the  said  McAden  gave 
checks  to  the  agent  of  the  Bank  for  the  amount  he  had  agreed  to 
take  for  the  judgment,  to-wit :  ten  thousand  four  hundred  dollars, 
and  took  possession  of  the  agreement  as  heretofore  stated,  profess- 
ing to  act  as  the  agent  and  friend  of  the  said  creditors  named  in  the 
agreement,  and  for  their  use  and  benefit. 

That  on  the  next  day  thereafter,  to  wit :  the  day  of  Novem- 

ber, 1871,  the  sheriff  of  Iredell  county  duly  sold  the  franchise,  road- 
bed, depots,  real  estate,  and  all  appurtenances  within  said  county, 
under  said  execution,  and  others,  whom  Charles  M.  Stedman,  afore- 
said, became  the  purchaser  at  the  sum  of  about  eight  hundred  dol- 
lars, and  took  the  receipt  of  the  sheriff  for  the  purchase  money,  and 
subsequently  thereto  the  said  Charles  M.  Stedman,  by  himself  or  his 
agents,  purchased  the  other  portions  of  the  road-bed,  depots  and 
other  property  belonging  to  the  Company  in  the  counties  of  Rowan, 
Burke,  McDowell  and  Buncombe,  at  sales  made   by   the   sheriffs   of 


(32) 

the  respective  counties,  under  the  said  execution,  and  took  their 
respective  receipts  for  the  purchase  money,  and  subsequently  took 
the  several  sheriffs'  deeds  for  his  said  purchases,  and  as  this  defend 
ant  is  informed  and  believes,  that,  afterwards  the  said  McAden  be- 
came the  purchaser  of  the  claim  or  debt  of  John  Malone  &  Co.,  who 
were  supposed  to  be  the  largest  creditors  named  in  the  agreement, 
and  the  said  Stedman  in  pursuance  of,  and  in  conformity  with,  the 
agreement  made  before  he  had  become  the  purchaser  of  the  proper- 
ty, did  convey  all  interest  he  had  acquired  by  the  purchases  in  said 
franchises,  road-bed,  depots  and  other  property  belonging  to  said 
Railroad  Company  to  the  said  McAden,  upon  the  same  trusts  and 
conditions  mentioned  in  said  original  agreement,  or  intended  to  do 
so  by  said  conveyance  as  this  defendant  is  informed  and   believes. 

That  it  is  true  that  after  the  defendant  had  ascertained  that  the 
said  McAden  was  setting  up  an  individual  claim  adversely  to  the 
interest  of  the  said  creditors,  acquired  by  said  agreement  with  said 
Stedman,  and  adversely  to  the  interest  of  the  bondholders  under  the 
mortgage,  did  on  the  22nd  day  of  June,  1872.  in  the  City  of  New 
York,  tender  to  the  said  Eufus  Y.  McAden  twelve  thousand  five 
hundred  dollars,  being  the  principle,  and  interest  at  seven  per  cent., 
upon  the  sum  advanced  in  payment  of  the  Cape  Fear  Bank  judg- 
ment, and  likewise  offered  to  pay  him  any  other  expenses  he  had 
incurred  in  the  matter,  which  he  refused  to  accept. 

The  defendant  denies  all  fraud,  collusion,  or  confederation  with 
the  said  McAden,  or  with  any  other  persons,  and  disclaims  any  purposes 
to  injure  or  unlawfully  hinder  and  delay  the  plaintiff  or  any  other 
person  holding  the  said  mortgage  bonds,  and  avers  that  the  same 
has  not  been  paid  by  the  defendant  in  consequence  of  the  want  of 
funds  and  its  entire  inability  to  raise  the  necessary  funds  to  pay  the 
interest  promptly,  and  having  answered  all  the  facts  and  avfrments 
contained  in  the  plaintiff's  bill  of  complaint,  which  it  is  advised  is 
material  to  answer,  now  submits  to  such  orders  and  decrees  as  may 
be  deemed  just  and  proper  in  the  premises  by  this  Honorable  Court. 
Prays  to  be  dismissed  with  reasonable  costs,  &c,  &c. 

B.  S.  G-aither,  as  of  Ccunsel. 

Sam'l  McD.  Tate,  President  of  the  Western  North  Carolina  Railroad  Com- 
pany, maketh  oath  that  he  has  read  the  foregoing  answer  and  knows  the  con- 
tents thereof.  That  the  facts  set  forth  therein  as  of  his  oAvn  knowledge  are 
true,  and  those  upon  information  and  belief  he  believes  to  be  true. 

Sam'l    McD.  Tath. 

Sworn  and  subscribed  to  before  me  October  nth,  1S72. 

Jxo.   W.  Payxe,  Clerk. 


{  33  ) 

EXHIBIT   A. 
flitv,  fjownty  ti'/irf  State  of  3STew  2~®rk,~SS. 

Having  this  day  confided  to  the  charge,  custody,  and  management  of  Messrs. 
Lancaster,  Brown  &  Company,  of  New  York  city,  the  following  described 
property  belonging  to  the  Western  North  Carolina  Railroad  Company,  to-wit : 
first  mortgage  bonds  of  the  said  the  Western  North  Carolina  Railroad  Com- 
pany, in  the  aggregate  of  the  value  of  one  million  and  fifty-seven  thousand 
dollars,  exclusive  of"  the  matured  coupons  thereto  attached,  and  the  said  Lan- 
caster, Brown  &  Co.  having  this  day  advanced  to  the  said  the  Western  North 
Carolina  Railroad  Company  upon  the  same  the  sum  of  two  hunched  and  forty 
thousand    four  hundred  and  seventy  one  dollars  and  sixty -eight  cents. 

In  consideration  of  the  said  advance,  and  the  services  of  the  said  Lancaster, 
Brown  &  Co.,  in  and  about  the  same,  the  said  the  Western  North  Carolina 
Railroad  Company  does  hereby  agree  to  and  with  the  said  Lancaster,  Brown  & 
Co.,  to  refund  said  advance,  with  interest  thereon  at  the  rate  of  seven  per  cent, 
per  annum  within  thirty  days  from  the  date  hereof;  and  that  for  such  advance 
and  interest,  together  with  the  charges  and  commissions  hereinafter  mentioned, 
as  well  as  for  all  other  sums  due  or  owing  or  to  become  due  ©rowing  to  the  said 
Lancaster,  Brown  &  Co.,  from  the  said  the  Western  North  Carolina  Railroad 
Company,  the  said  Lancaster,  Brown  &  Co.,  shall  have  a  Hen  prior  to  all  other 
claims  upon  the  said  property  and  proceeds  thereof. 

Further  that  the  said  Lancaster,  Brown  &  Go.,  shall  not  be  liable  for  any 
loss  ot  injury  resulting  from  depreciation  or  from  any  cause  other  thai  the 
gross  negligence  of  them,  the  said  Lancaster,  Brown  &  Co.,  which  may  happen 
to  the  bonds  above  referred- to  whilst  they  remain  in  the  custody  of  the  said  Lan- 
caster, Brown  &  Co. 

Further  that  if  at  the  expiration  of  the  period  fixed  for  the  payment  of  this 
advance  the  same  remain  unpaid  then,  and  in  that  event  the  said  Lancaster, 
Brown  &  Co.,  snail  have  the  right  to  sell  said  bonds  or  so  many  of  them  as  may 
be  m.ccessary  to  repay  said  advance,  and  all  interest,  commissions,  and  expenses 
at  public  outcry  in  the  city  of  New  York,  on  the  fourteenth  day  of  March,  1S72, 
by  Albert  H.  Nicolay,  public  auctioneer,  at  his  place  of  public  sale,  in  said  city, 
between  the  hours  of  12  M.  and  2  P.  M.,  at  which  public  sale,  the  said  Lancas- 
ter, Brown  &  Co.,  if  so  minded,  may  become  public  bidders,  and  receive  the 
proceeds  of  such  sale  which  shall  be  applied  in  the  first  place  to  the  payment  in 
full  of  whatever  may  then  be  due  to  the  said  Lancaster,  Brown  &  Co.  The 
foregoing  to  be  held  and  regarded  by  the  Western  North  Carolina  Railroad 
Company  as  due  and  timely  notice  of  time  and  place  of  sale  in  case  of  default. 

Until  such  sale  shall  be  made,  and  proceeds  collected,  or  the  advance  paid, 
interest  and  a  pro  rato  commission  shall  be  charged. 

In  case  of  a  deficiency  in  the  proceeds  of  such  sale,  it  is  to  be  made  good  by 
the  said  the  Western  North  Carolina  Railroad  Company,  receiving  this  ad- 
vance upon  demand,  and  immediately  after  such  sale,  and  if  there  be  a  surplus, 
either  in  money  or  unsold  bonds,  tlii  sam;  is  to  be  immediately  accounted  for, 
and  paid  over  to  the  party  signing  the  contract,  to  wit  :  to  the  Western  North 
Carolina  Railroad  Company. 

Further  that  the  commissions  of  the  said  Lancaster.  Brown  &  Co.,  upon  a 
sale  of  said  bonds  or  any  portion  thereof,  shall  be  two  and  one  half  per  cent, 
upon  the  par  value  of  the  bonds  sold.  If  no  such  sale  shall  be  made  by  the  said 
Lancaster,  Brown  &  Co.,  and  the  advances  shall  be  refunded,  and  the  said  pro- 
perty withdrawn  from  the  custody  of  the  said  Lancaster,  Brown  &  Co..  the 
compensation  of  the  said  Lancaster,  Brown  &  Co.,  for  all  management,  and 
charge  of  the  said  property,  whilst  in  the  custody  of  the  said  Lancaster,  Brown 
&  Co.,  and  for  services  in,  and  about  the  same,  shall  be  three-fourths  of  one 
per  cent,  upon  the  amount  of  such  advance   over,    and  above  all  disbursements 


(34) 

made  by  the  said  Lancaster,  Brown  &  Co.,  on    account  of  the   said   property. 

which  in  any  event  are  to  be  paid. 

$240,471. 6S."  (Signed.)     The  Western  North  Carolina 

Rail  Road  Compamy. 

Dated  New  York  City,  February  6th,  1S72. 

By  Sam'l  McD.  Tate,  President. 

Filed  October  1872. 

Upon  affidavits  filed  by  Robert  A.  Lancaster,  and  petition  of  said  Lancaster, 
Robert  F.  Atkinson.  J.  C.  Meban^,  Proudfit,  and  Norris  &  Son,    the  v. 

and  each  company,  are  made,  each  parties  plaintiffs. 

The    Circuit  Court  of  the    United  States  for  tlie    Western  Dis- 
trict of  North    Carolina  : 
Hiram  Sibley  and  Henry  Clews,  ] 

*  against  1 

The  Western  North  Carolina   Railroad    Com-  [ 

pany,  Tod  R.  Caldwell,   Ruf  us  Y.  McAden.  \  Defendants. 

John    Rutherford,    Hiram     Kelly,    James 

and  Thomas  Greenlee,  and  Mary   Carson, 

A.  H.  Erwin,  and  others. 
A  v^n^Ruther-  ^ne  j0^  anc*  separate  answer  of  A.  H.  Erwin,  of  the  county  of 
torde;  ai.  J3ur]iej  aml  John  Rutherford,  Hiram  Kelly,  James  Greenlee,  Thomas 
Y,  Greenlee  and  Mary  Carson,  of  the  county  of  McDowell,  in  the 
State  of  North  Carolina,  reserving  all  right  of  exceptions  to  the 
plaintiffs'  bill  of  complaint,  sayeth,  that  the  facts  charged  in  the 
plaintiffs'  bill,  relative  to  the  organization  of  the  Western  North 
Carolina  Railroad  Company,  the  issuing  of  the  bonds  of  said  Com 
pany,  and  the  execution  of  the  deeds  of  mortgage,  or  trust,  by  the 
said  Company  to  the  plaintiffs,  Henry  Clews  and  Tod  R.  Caldwell, 
to  secure  the  said  bonds.  These  defendants  have  no  personal  know- 
ledge, but  are  informed  and  believe  that  the  alligations  and  aver- 
ments contained  in  plaintiffs'  bill  relative  thereto,  are  in  substance 
and  effects,  truly  and  correctly  charged. 

That  the  defendant,  A.  H.  Erwin,  answers,  that  the  said  Western 
N.  C-  Railroad  Company  is  justly  indebted  to  him  in  the  sum  of  five 
hundred  dollars,  or  thereabout,  due  by  two  several  judgments  taken 
against  said  Company  in  Burke  Superior  Court. 

The  defendant,  John  Rutherford,  answers  that  the  said  Company 
is  jnstly  indebted  to  him  in  the  sum  of  fifteen  hundred  dollars  and 
interest,  by  judgment  obtained  by  him  against  said  Company  in  Mc- 
Dowell county.     Some  five  hundred  dollars  of  which  has  been  paid. 

That  the  defendant,  Thomas  Y.  Greenlee,  answers  that  he  has  two 
judgments  in  McDowell  Superior  Court  amounting  to  some  seven- 
teen hundred  dollars  and  interest,  which  is  still  due  and  unpaid 


(35) 

James  Greenlee  answers,  that  he  has  no  debt  or  claim  against  said 
Company. 

Hiram  Kelly  answers  that  he  had  a  judgment  against  the  said 
Company  for  some  two  hundred  and  eighty  dollars,  but  the  same 
had  been  paid. 

Mary  0  irson  answers  that  the  said  Company  is  indebted  to  her 
as  guardian  of  her  ciiil  Iren  in  the  sum  of  one  thousand  dollars,  due 
for  damages  sustained  by  the  right  of  way  of  the  said  Company 
through  her  children's  land,  which  is  still  due  and  unpaid.  All  of 
which  said  indebtedness  of  the  said  Company  will  more  fully  appear 
by  the  record  of  the  Cjurts  of  Burke  and  McDowell  counties,  which 
these  defendants  will  produce  when  required  by  this  Court. 

These  defendants  having  answered  all  the  matters  contained  in 
plaintiffs'  bill  of  complaint,  which  they  are  advised  are  material  for 
them  to  answer,  pray  that  their  rights  in  the  premises  may  be  pro- 
tected in  this  Honorable  Court,  and  submit  to  such  decree  as  this 
Court  may  deem  just  and  equitable,  that  they  may  be  dismissed  with 

COStS.    &C.  JB.    S.   GrAITHER, 

as  of  Counsel. 
Filed  October  1872. 

In  the  Circuit  Court  of  the  United  States  in  and  for  the    Western    District   of 
North  Carolina  at  Greensboro,  October  Term  A.  D.  1872. 

Henry  Clews,  and  Hiram  Sibley,  Plaintiffs,  ~)  Order.  &c,  October.  Petition,  &c> 

Against  I  of   W.   H.  Howerton,  and  Others, 

The  Western  North  Carolina  Rail  Road,  J  Marcus  ErWin,  appearing  by  per- 

and  Others,  Defendants.  J  mission  of  the  Court  as  counsel,  &g. 

Upon  hearing  the  petition  of   William  H.  Howerton,    Thomas    G.    Walton,  0rder  makin<* 
W.  A.  Eliason,  Richard  A.  Caldwell  J.  J.  Mott,  A.  H.  Shuford,  Rufus  L.  Pat-   w»  H.  Hutfer* 
terson,  William  F.  Craig,  John  I.  Shaver,  J.  R.  Elias,  N.  W.  Woodfin,  and    S.    tcmetal.par 
H.  Fleming,  &c,  &c,  and  upon  hearing  the  matters,  and  things  therein  alleged,    ties" 
&c,  argued  by  Marcus  Erwin,  Esq.,  of  counsel,  for  last  named  petitioners,  and 
Phillips  &  Merrimon,  of  counsel  for  the  complainants,. 

It  is  ordered  by  the  Court  that  the  said  William  H.  Howerton,  and  the  said 
other  petitioners,  be  and  they  are  hereby  made  parties  defendant  to  this  suit 
according  to  the  effect  of  the  prayer,  Stc,  in  their  petition  contained.  And  it  is 
further  ordered,  that  they  make  answer,  Sic,  to  the  bill  of  complaint  on  or  be- 
fore Fridav  the  Sth  day  of  November.  Rout.  P.  Dick, 

Filed  October  ,1872.  Judge. 

In  the  Circuit  Court  of  the  United  States  at  Greensboro,  in  the    Western  Dis* 

trict  of  North  Carolina,  of  October  Term  A.  D.  1872. 
Henry  Clews,  and  Hiram  Sibley,  ^  In  Equity, 

Against  I  Order  of  reference  for  an  account,  Sic,  Sic, 

The    Western    North     Carolina  j 
Rail  Road  Company  and  Others.  J  October  7th,  (1S72.) 

On  motion  of  counsel  for  the  complainants, 

It  is  referred  to  John  W.  Payne,  Esq.,  Clerk,  Sic,  to  ascertain   who   are  the    enc^r°  re  er* 


holders  of  the  mortgage  hoods  mentioned  in  the  pleadings,  and  to  take  and  state 
an  account  of  the  pritxcipfi^interest,  and  amount  due  to  each  of  such  holders  an 
account  of  such  bonds,  and  make  report  of  the  same,  on  or  before  the  19th  inst. 

In  the  Circuit  Court  of  t  ;e  United  States  at  Greensboro,  in  and  for   the    Wes- 
tern District  of  North  Carolina,  October  12th,  A.  D.,  1S72. 

Henry  Clews,  Hiram  Sibley,  Plaintiffs.)  Master's   report    in    obedience  to  the 
Against  |  order  of  reference  made    the  7th  day 

The  Western  North  Carolina  Railroad  \  of  October,  A.  D.,  1S7.Z. 
Company  and  others,  Defendants.      J 

In  obedience  to  the  o  der  of  reference,  Hcc. ,  to  the  undersigned,  made  in  this 
cause,  and  dated  the  7th  day  of  October,  A.  D.,  1S72,  directing  me  to  take,  and 
state  an  account,  &c,  and  make  report.  &£-.,  I  have  proceeded  to  discharge  the 
duty  so  assigned  me,  and  now  beg  leave  to  make  this- 

*  REPORT. 

if  Ref-  First  : — That  the  said  the  Western  North  Carolina  Railroad  Company  for 
divers  good,  and  valuable  considerations  to  it  paid,  made  and  issued,  and  deliv- 
ered its  coupons,  bonds,  secured  by  the  mortgage,  mentioned  in  the  pleadings 
in  this  cause,  and  of  date,  March  A.  D.,  1S70,  for  the  aggregate  amount  of 
thirteen  hundied  and  fifty  thousand  dollars  ($1,350,003.)  less  five  hundred  thous- 
and dollars  ($500,000.)  thereof,  which  were  not  completely  executed  for  the  lack 
of  the  signature  of  Tod  R.  Caldwell,  trustee,  &c.,  that  the  said  bonds  bear  date 
the  date  of  said  mortgage  payable  in  twenty  years,  bearing  interest  at  the  rate 
of  eight  per  cent,  per  annum,  payable  semi-annually,  secured  bv  coupons  to 
said  bonds  attached  that  it  is  provided  that  if  the  interest  accruing  upon  said 
bonds  is  not  paid  according  to  the  terms  of  the  said  bonds,  and  said  mortgage, 
then  the  whole  of  the  said  bonds  so  issued  shall  at,  and  in  such  contingnency 
come  due.  and  the  holders  thereof,  may  have  a  foreclosure  of  said  mortgage, 
&c,  that  said  bonds  all  so  issued  to  divers  persons  for  value  :  that  Hiram  Siblev, 
one  of  the  plaintiffs  in  t  lis  cause,  for  a  valuable  consideration,  become  and  now 
is  the  owner  and  holder  of  divers  of  said  bonds,  representing  five  hundred  and 
thirty -seven  thousand  dollars  ($537,000,)  of  prinoptefenonev  bonds,  five  hundred 
(500,)  of  said  bonds  representing  five  hundred  thousand  dollars  ($500,000.)  not 
completely  executed  for  the  lack  of  the  signature  of  Tod  R.  Caldwell, 
tmstee,  &c,  that  the  said  bonds  so  held  by  the  said  Hiram  Siblev, 
have  coupons  attached  from  July  1st,  A.  D.,  1870;  that  the  coupons 
due  upon  said  last  mentioned  bonds  so  duly  executed  and  belong- 
ing to  the  said  Hiram  Sibley,  were  duly  presented  for  payment  to  the  said  com- 
pany, and  its  agents  on  the  14th  day  of  March.  A.  D.  1S72,  and  payment  there- 
of demanded,  and  payment  thereof  was  refused,  and  no  payment  thereof  since 
that  time  has  been  made  to*  the  said  Hiram  Sibley,  or  any  one  for  him,  that  the 
whole  amount  of  principtevnoney  due  to  the  said  Hiram  Sibley  on  accounts  of 
said  bonds  is  five  hundred  and  thirty-seven  thousand  dollars  ($537,000,)  and  the 
amount  of  interest  due  on  the  'aid  bonds  to  the  said  Hiram  Sibley  is  ninetv- 
six  thousand  six  hundred  and  sixty  dollars  ($96,660.00,)  and  the  aggregate 
amount  due  him  on  the  first  day  of  October,  A.  D.  1S72,  is  six  hundred  and 
thirty-three  thousand  six-  hundred  and  sixty  dollars   ($633,660.00.) 

That  Richard  Norris,  and  Heury  Lat timer  trading  under  the  name  and  style 
of  Richard  Norris  tx;  Son  are  the  owners  and  holders  for  value  of  twenty-four 
(24)  of  said  bonds,  each  of  the  denomination  of  one  thousand  dollars  ($1,000,) 
and  such  bonds  are  numbered,  542,  543,  544,  545.  546,  572.  573,  574,  575,  576, 
577-  57S.  579>  5 So,  5S1,  5S2.  6S£,  5S4,  585.  5S6,  5S7.  5S8,  589,  and  5flo,  and 
each  with  the  coupons  attached  from  July  A.  D.  1870;  that  the  principWunoney 
due  upon  said  bonds  to  the  said  Richard  Norris  &  Son  is  twenty  four  thousand 
dollars  ($24,000.00,)  that  the  interest  due  on  the  same  to  them  to   the  first  day 


(37) 

of  October,  A.  D.,  1872,  is  four  thousand  three  hundred  and  twenty  dollars  ($4,- 
330.00,)  that  the  amount  due  to  the  said  Richard  Norris  &  Son  on  the  first  day 
of  October,  A.  D.,  1S72,  on  account  of  said  bonds  is  twenty-eight  thousand 
three  hundred  and  twenty  dollars  ($28,320.00.) 

That  Robert  A.  Lancaster  is  the  owner  and  holder  of  five  of  said  bonds  for 
value,  each  of  the  denomination  of  one  thousand  dollars  ($1,000,)  and  numbered 
from  501  to  505,  inclusive,  with  the  coupons  attached  thereto,  from  July,  A.  D., 
1870.  that  the  principiaunoney  due  on  said  bonds  is  five  thousand  dollars,  the 
interest  due  on  the  same,  to  the  first  day  of  October,  A.  D.,  1872,  is  nine  hun- 
dred dollars  ($900,)  and  the  amount  due  to  the  said  Robert  A.  Lancaster  on  the 
first  day  of  October,  A.  D.,  1872,  is  five  thousand  and  nine  hundred  dollars 
(#5,900.00.) 

That  Robert  T.  Atkinson  is  the  owner  and  holder  for  value,  of  five  of  said 
bonds,  each  of  the  denomination  of  one  thousand  dollars  ($1,000,.)  numbered 
from  516  to  520,  inclusive,  with  the  coupons  attached  from  July,  A.  D.,  1870, 
that  the  princip&^money  due  upon  said  bonds  is  five  thousand  dollars  ($5,000,) 
the  interest  due  on  the  same  is  nine  hundred  dollars,  ($900,)  and  the  amount 
due  the  said  Robert  T.  Atkinson  on  account  of  said  bonds  to  the  first  day  of 
October,  A.  D.,  1872,  is  five  thousand  and  nine  hundred  dollars  ($5,900.00.) 

That  James  C.  Mebane  is  the  owner  and  holder  per  value  of  five  of  said  bonds, 
each  of  the  denomination  of  one  thousand  dollars,  ($1,000,)  numbered  from 
506  to  510,  inclusive,  with  the  coupons  attached  from  July,  A.  D.,  1870,  that 
the  principftCpf  said  bonds  is  five  thousand  dollars,  ($5,000,)  that  the  interest 
due  uii  the  same  is  nine  hundred  dollars,  ($900,)  that  the  amount  due  to  the  said 
James  C.  Mebane  on  the  first  day  of  October,  A.  D.,  1872,  on  account  of  said 
bonds,  is  five  thousand  and  nine  hundred  dollars,  ($5,900.00.) 

That  Proudfit  is  the  owner  and  holder  per  value  of  five  of  said  bonds, 

each  of  the  denomination  of  one  thousand  dollars  ($1,000,)  numbered  from  511 
to  51a,  inclusive,  with  coupons  attached  from  Juty,  A.  D. ,  1870,  that  the  prin- 
cipfe(nioney  due  on  said  bonds  is  five  thousand  dollars,  ($5,000,)  that  the  inter- 
est due  on  the  same  to  the  first  day  of  October,  A,  D.,  1872,  is  nine  hundred 
dollars  ;  that  the  amount  due  to  the  said  Proudfit  on  account  of  said  bonds  to 
said  date,  is  five  thousand  and  ninetundred  dollars,  ($5,900.) 

That  the  North  Carolina  Railroad  Company  are  the  owners  and  holders  for 
value  of  thirty-nine  of  said  bonds,  each  of  the  denomination  of  one  thousand 
dollars,  ($1,000,)  and  twenty-five  thereof,  numbered  from  251  to  275,  in- 
clusive, and  fourteen  thereof  numbered  from  487  to  500  inclusive,  and  each  of 
said  honds  with  the  coupons  attached  from  January,  A.  D.,  1872,  that  the  prin- 
eip*Cmoney  due  upon  said  bonds  to  the  N.  Carolina  Railroad  Company,  is 
thirty-nine  thousand  dollars,  ($39,000.00,)  and  the  amount  of  interest  due  on 
said  bonds  to  the  1st  day  of  October,  A.  D.,  1872,  is  two  thousand  three  hun- 
dred and  forty  dollars  ($2,340.00,)  and  the  amount  due  to  said  Company  on  ac- 
count of  said  bonds,  is  forty-one  thousand  three  hundred  and  forty  dollars, 
($41,340.00,)  on  the  said  first  day  of  October,  A.  D.,  1872. 

That  the  First  National  Bank  of  Charlotte  is  the  owner  and  holder  for  value 
of  thirty  six  of  said  bonds,  each  of  the  denomination  of  one  thousand,  ($1,000,) 
with  coupons  attached  from  July,  A.  D.,  1870,  that  the  principtefmoney  due 
upon  said  bonds  is  thirty-six  thousand  dollars,  ($36,000.00,)  that  the  interest  on 
the  same  to  the  first  of  October,  A.  D. ,  1872,.  is  six  thousand  five  hundred  and 
eighty  dollars,  ($6,580.00,)  and  the  amount  due  to  them  on  account  of  said 
bonds  is  forty-two  thousand  five  hundred  and  eighty  dollars,  ($42,580.00. 

That  Hufus  Y.  McAden  is  the  owner  and  holder  for  value  of  said  bonds  to  the 
amount  of  one  hundred  and  eighty-three  thousand  dollars,  that  the  said  bonds 
have  coupons  attached  from  July,  A.  D.,  1870,  that  the  principfe(_money  due 
upon  said-)aonds  is  one  hundred  and  eighty -three  thousand  dollars  (183,000.00,) 
that  the  interest  due  on  the  same  to  the  fiist  of  October,  A.  D.,  1872,  is  thirty- 
two  thousand  nine  hundred  and  forty  dollars,  and  the  whole  amount  due  to  him 


(35) 


on  the  said  last  named  day  is  two  hundred  and  fifteen  thousand  nine  hundred 
and  forty  dollars,  (-$215,940,)  that  there  are  other  liens  on  said  property,  hut  all 
of  a  date  subsequent  to  the  said  mortgage. 

Jno.   W.  Payne,   Commissioner. 
Filed  October  Term,  1872. 

In  the  Circuit  Court  of  the  United  States  in  and  for  the  Western   District  of 
North  Carolina,  at  Greensboro,  of  October  Term,  A.  D.,  1872  : 

Henry  Clews  and  Hiram  Sibley,  Plaintiffs,        *] 

Against  [ Order  of  transfer,   &c,  Octo- 

The  Western  North  Carolina  Railroad  Com  pa-  j    •  ber,  1872. 
ny  and  others,  Defendants.  J 

By  consent  of  parties  and  on  motion, 

Or  ler  of  trans-      ^  j9  ordered  by  the  Court,  that  this  cause  be  transferred  to  the  Circuit  Court 

ville.  °f  t'ie  United  States  at  Asheville,  at  the  term  of   said  last   named   Court,  to  be 

held  on  the  day  of  November,   A.  D.,  1872      And  the  clerk  of  this  Court 

will  certify  this  order  to  that  Court,  and  send  th«  original   papers   in  the  cau3e. 

Rob't.  P.  Dick,  Judge. 

In  the  Circuit  Court  of  the  United  States,    in  and  for  the  Western  District  of 
North  Carolina,  at  Asheville,  of  November  Term,  A.  D.,  1872. 

Heiiiy  Clews  and  Hiram  Sibley,  Plaintiffs,        "1 

Agtinst  [Order    &c,    November    13th, 

The  Western  North  Carolina  Kailroad  Compa-  f      1872. 
ny  and  others,  Defendants.  J 

It  appears  to  the  Court  that  process  has  been  duly  served  upon  the  Defend- 
eSuto  a,us'  R -lfU3  Y  McAden,  The  Fust  National  Sink  of  Charlotte.   Tod   R.    paid- 
Mc\den&c.    well,  trustee,  &c,  N.  H.  D.  Wilson,  assignee,    &c,    and  R.  M.  Walker.     And 
that  they  come  not,  and  fail  to  plead  on,  or  demur  to  the  bill  of  co  n plaint,    &c. 
It  is  therefore  upon  motion  of  Phillips  a  id  .U;rrino  i,  counsel  for   the   Plain- 
tiff, ordered  by  the  Court,  that  the  said  bill  of  complaint  be  taken  pro  confesso, 
as  to  the  last  named  Defendants. 

Rob't,  P.  Diok,  Judge. 

In  the  Circuit  Court  of  the  United  States,  in  and  for   the   Western    District  of 
North  Carolina,  at  Asheville,  of  November,  A.  D..  1S72, 

Hiram  Sibley,  and  Henry  Clews,  Plaintiffs,"]  Order,  fee, 

Against  { 

The  Western  North  Carolina  Railroad      j  November  12th. 

Company  and  others,  Defendants.  J 

JuVmeut  pro       The  defendants,  Wlliam  H.  Howerton.  Thomas  G.  Walton,  W.  A.  Eliaon, 
confesso     vs.  Richard  A.  Caldwell,  J.  f.  Mott,  A.  H.  Shuford,  Ruths  L.  Patterson.    William 
Hoverton B'd  p   Craig,  John  I.  Shaver",  J.  R.  Ellis,    N.  W.  Woodtin  and  S.  H.  Fleming,  hav- 
ing been  made  parties  defendant  to  this  suit  upon  their  own  petition,  and  having 
failed  to  make  answer,  &c,  according  to  the  former  order  made  in  this    behalf". 
Up3n  mot  or.  of  Phillips  &  Merrimon,  of  counsel  for  the  complainants.  Ma  - 
cus    Envin  for    said  last    named  defendants    being  present   in  Court,  and  not 
objecting; 

It  h;  ordered  that  the  bill  of  complaint  be   taken  pro  confesso,  as  to  said  last 
name^defendant£  Robt.  P.    Dick. 

%J  udge. 
In  the  Circuit  Court  of  the  United  States,  in  and  for  the    Western    District  of 


(39) 

North  Carolina,  at  Asheville,  of  November  Term,  A.  D.,  1S72. 

Henry  Clews,  and  Hiram  Sibley,  Plaintiffs,  1  November  13th, 

Against  | 

The  Western  North  Carolina  Railroad       [  Order,   &c. 

Company  and  others,  Defendants.  J 

Upon  motion  of  Phillips  &  Merrimon,  of  counsel  for  the   complainants,    and  Qrder    settin 
there  being  no  objection  on  the  part  of  the  defendant Jpr  any  of  them,  cause  "down 

It  is  ordered  that  this  cause  be  set  down  lor  hearing  upon  the  bill  Exhibit    for  hearing, 

in  testimony,  order,  reports  of  the  Master,  &c,  &c.  Robt.  P.  Dick. 

Judge. 

In  the  Circuit  Court  of  the  United  States,  in  and  for    the  Western   District  of 

North  Carolina,  at  Asheville,  of  November  Term,  A.  D-,  1872. 
Henry  Clews,  and  Hiram  Sibley,  Plaintiffs, "]  Minutes  of  Decree  of  Forecloure, 
Against  f 

The  Western  North  Carolina  Railroad       j 

Company,  and  others,  Defendants.  J  November  14th,  1872. 

This  case  is  this  day  heard,  &c,  &c. 

The  Court  decrees  the  debts  of  the  parties  plaintiff"  respectively  according  to 
the  Master's  report,  &c. 

The  Foreclosure   of  the  Mortgage. 

The  sale  of  the  property  embraced  by  the  mortgage  mentioned  and  specified 
in  the  pleadings,  and  that  the  sale  be  made  at  Salisbury  after  40  days  notice  in 
the  newspapers,  to  wit  :  The  New  Yoi-k  Times,  the  Philadelphia  Age,  The 
Baltimore  Gazette,  the  Sentinel,  News,  and  Era,  at  Raleigh;  the  Patriot,  and 
New  North  State, at  Greensboro;  the  Watchman  at  Salisbury;  the  Citizen  and 
Pioneer,  at  Asheville,  three  weeks  in  the  weekly  papers,  and  one  week  in  the 
daily. 

Appoint  Burgess  S.  Gaither,  and  Marcus  Erwin,  Esquires,  commissioners,  and 
with  full  power  to  sell  the  said  property  for  cash,  and  make  report  to  the  Court. 

That  creditors  may  bid  for  the  property,  and  such  bidders  after  paying  a  suf- 
ficient amount  of  the  purchase  money  in  cash  to  pay  the  costs  and  expenses  in 
this  behalf,  and  the  excuting  the  trust,  &c,  &c,  may  be  credited  with  their 
debts  in  payment,  if  the  amount  for  which  the  property  shall  sell,  is  sufficient 
to  pay  the  debts,  otherwise,  pro  eato. 

That  the  parties  to  the  suit  shall  be  in  all  respects, 
Concluded,    estopped,    &c,  &c,    as  to  all  rights,  &c. ,    &c,    embraced  by  the 
pleadings,  suit,  &c,  &c. 

Case  retained  for  further  orders.  Robt.  P,  Dick, 

U.  S.  District  Judge. 

In  the  Circuit  Court  of  the  United  States  at  Asheville,  in  and 
for  the  Western  District  of  North  Carolina,  of  November 
Term,  A.  D.   1S72  .■ 

Henry  Clews,   Hiram    Sibley   and    others,"] 

Plaintiffs,  I  -^  p  -vt 

. '  Decrees,    &c,    No- 

against  V  ,  cfV 

The    Western    North      Carolina    Railroad  |  5 

Company,  and  others,  Defendants.  J 

This  cause  come  on  to  be  heard  at  this  term,  and  was  argued 
by  counsel,  and  thereupon,  upon  consideration  thereof  it  was  or- 
dered adjudged,  and  decreed  as  follows,  that  is  to  say  : 


(4o) 

That  the  report,  and  all  things  therein  contained  of  Jno.  \V. 
Payne,  Esquire,  a  master  of  this  Court,  which  report  bears  date 
the  12th  day  of  October,  A.  D.,  1S72,  and  was  made  in  pursuance 
of  an  order  of  the  Court,  heretofore  made  in  this  Court,  referring 
it  to  him  to  take  such  account  &c,  do  stand  ratified  and  confirmed. 

It  is  further  ordered;  adjudged  and  decreed  that  there  is  due  and 
owing  to  the  said  Hiram  Sibley,  from  the  said  the  Western  North 
Carolina  Railroad  Company,  upon  the  said  mortgage  bonds,  the 
sum  of  six  hundred  and  thirty-three  thousand  six  hundred  and  six- 
ty dollars  (.$633,660.00,)  and  of  this  sum  five  hundred  and  thirty- 
seven  thousand  dollars,  ($537,000,)  bears  interest  from  the  first 
day  bf  October,  A.  D.,  1S72,  until  paid. 

That  there  is  due  and  owing  to  the  said  Richai-d  Xorris  and 
Henry  Lattimer.  trading  under  the  name  and  style  of  Richard 
Norris  &  Son,  from  the  said  the  Western  North  Carolina  Compa- 
ny, upon  such  mortgage  bonds,  the  sum  of  twenty-eight  thousand 
three  hundred  and  twenty  dollars,  ($28,320.00.)  and  of  this  sum 
twenty-four  thousand  dollars  ($24,000.)  bears  interest  from  the 
first  day  of  October,  A.  D.,  1S72,  until  paid. 

That  there  is  due  and  owing  to  the  said  Robert  A.  Lancaster, 
from  the  said  Western  North  Carolina  Railroad  Company,  upon 
such  mortgage  bonds,  the  sum  of  five  thousand  and  nine  hundred 
dollars,  ($5,900.00,)  and  of  this  sum  five  thousand  dollars  bears 
interest  from  the  first  day  of  October,  A.  D.,  1S72,  until  paid. 

That  there  is  due  and  owing  to  the  said  Hirbert  F.  Atkinson, 
from  the  said  the  Western  North  Carolina  Railroad  Company, 
upon  such  bonds,  the  sum  of  five  thousand  and  nine  hundred 
dollars,  ($5,900:00,)  and  of  this  sum  five  thousand  dollars  bears 
interest  from  the  first  day  of  October,  A.  D.,  1S72,  until  paid. 

That  there  is  due  and  owing  to  the  said  James  C.  Mebane,  from 
the  said  the  Western  North  Carolina  Railroad  Company,  upon 
such  mortgage  bonds,  the  sum  of  five  thousand  and  nine  hundred 
dollars,  ($5,900.00,)  and  of  this  sum  five  thousand  dollars 
($5,000.00)  bears  interest  from  the  first  day  of  October,  A.  D. , 
1S72,  until  paid. 

That  there  is  due  and  owing  to  the  said  Proudfit,  from  the  said 
the  Western  North  Carolina  Railroad  Company,  upon  such  mort- 
gage bonds,  the  sum  of  five  thousand  and  nine  hundred  dollars, 
($5,900.00)  and  of  this  sum  five  thousand  dollars  ($5,000.00)  bears 


interest  from  the  first  day  of  October,  A.  D.,  1872,  until  paid. 

That  there  is  due  and  owing  to  the  said  the  North  Carolina 
Railroad  Company,  from  the  said  the  Western  North  Carolina 
Railroad  Company,  upon  such  mortgage  bonds,  the  sum  of  forty- 
one  thousand  three  hundred  and  forty  dollars,  ($41,340.00,)  and 
of  this  sum  thirty-nine  thousand  dollars  ($39,000.00,)  bears  inter- 
est from  the  first  day  of  October,  A.  D.  1872,  until  paid. 

That  there  is  due  and  owing  to  the  said  First  National  Bank  of 
Charlotte,  from  the  said  the  Western  North  Carolina  Railroad 
Company,  upon  such  mortgage  bonds,  the  sum  of  forty-two  thou- 
sand four  hundred  and  eighty  dollars,  ($42,480.00,)  and  of  this 
sum  thirty-six  thousand  dollars  ($36,000.00)  bears  interest  from 
the  first  day  of  October,  A.  D.,  1872,  until  paid. 

That  there  is  due  and  owing  to  the  said  Rufus  Y.  Mc Aden,  from 
the  said  the  Western  North  Carolina  Railroad  Company,  upon 
such  mortgage  bonds,  the  sum  of  two  hundred  and  fifteen  thou- 
sand nine  hundred  and  forty  dollars,  ($215,940,00,)  and  of  this  sum 
one  hundred  and  eighty-three  thousand  dollars  ($183,000.00)  bears 
interest  from  the  first  day  of  October,  A.  D.,  1872,  until  paid. 

And  it  is  further  ordered,  adjudged  and  decreed  that,  all  and 
singular,  the  said  mortgaged  premises,  both  real  and  personal,  Decree  of  sale 
mentioned  and  described  in  the  bill  of  complaint  in  this  cause,  be  *g-°,f  0ctob'r' 
sold  by  public  auction  by  Burgess  P.  Gaither  and  Marcus  Erwin, 
Esquires,  who  are  hereby  appointed  commissioners  for  that  pur- 
pose, and  invested  with  full  power  to  that  end,  that  said  deed, 
such  sale  shall  be  made  in  the  town  of  Salisbury,  in  the  county  of 
Rowan,  in  said  State  of  North  Carolina,  where  a  part  of  said 
property  is  situate  ;  that  if  the  said  mortgaged  property  shall  not 
sell  for  a  sum  of'money  sufficient  to  pay  the  said  debts,  costs,  com- 
missions and  other  expenses  embraced  and  decreed  in  this  Court, 
then,  and  in  that  case  the  said  commisssioners  shall  sell  the  fore- 
closure of  the  said  the  Western  North  Carolina  Railroad  Compa- 
ny, and  the  highest  and  best  bidder  therefor  shall  be  such  and  as 
shall  satisfy  the  said  debts    remaining  unpaid,  with  all  costs 

thereon,  or  who  shall  agree  to  take  such  forecloses  for  the  shortest 
period  of  time,  and  receive  during  that  time  all  such  part  and  tolls 
as  the  said  corporation  would  by  law  be  entitled  to  receive  and 
demand  ;  that  said  commissioners  shall  give  public  notice  of  the 
time  and  place  of  such  sale  ;  that  such  notice   shall   be  published 


(4^) 

forty  days  in  the  following  named   newspapers,  viz  :     The    New 
York  Times,  The  Philadelphia  Age,   The  Baltimore  Gazette,  The 
Raleigh   Sentinel,  The    Raleigh    News,  The    Raleigh    Era,    the 
Greensboro  Patriot,  The  New  North  State,  the  Salisbury  Watch- 
man, The  Asheville  Citizen,  and  Pioneer.     That  such  sale  shall  be 
made  for  cash  in  hands,  and  the   said  commissioners    shall    make 
report  of  the  sale  so  to  be  made  by  them,  to   this    Court  ;  that  the 
complainants,  or  any  one  or  more  of  them,  may   become    the  pur- 
chaser or  purchasers  of   said  property,    or  any  part    thereof,  and 
said  franchises  ;  that  said  commissioners  shall  execute  and  deliver 
a  deed  or  deeds  to  the  purchaser  or  purchasers  of   the    said    mort- 
gaged property  and  franchises,  when  such  sale  shall  be  ratified  by 
this  Court,  good  and  sufficient  in  all  respects   to  pass    the    title  of 
the  said  the  Western  North  Carolina  Railroad  Company  to  the  same 
that  the  said  creditors,  if  thev,  or  any  of  them,   shall   purchase   said 
property  or  any  part  thereof,  after  paying  to  said  commissioners,  to 
sell,  &c,  a  sum  of  money  sufficient  to  pay  and  discharge  the  debts  uf 
such  of  said  creditors  as  do  not  so  purchase,  and  the  costs,  commis- 
sion and    other   expenses  in  this  behalf  decreed  to    be  paid,  may  be 
credited  with  the  debts  herein  decreed  to   such   purchaser   or  pur- 
chasers, and  if  the  said  mortgaged  property  shall  not  sell  for  a  sum 
of  money  sufficient  to  pay  all  the    said   debt,  costs,   &c,  then  such 
creditors  as  do  purchase  said  property  or  any  part  thereof,  shall  be 
credited  with  his  or  their  pro  rato  part  of  his  or  their  debt  or  debts 
as  may  so  be  entitled  to  be  paid,  that  the  proceeds  of   such    sale  be  • 
distributed  under  the  further  order   of   this  Court,  subject  to    this 
decree. 

It  is  further  ordered,  adjudged  and  decreed,  that  the  defendants, 
and  all  parties  to  this  cause,  and  all  persons  claiming,  or  to  claim 
from  or  under  them,  be  forever  barred  and  foreclosed  of  and  from 
all  equity  of  redemption  and  claim  of,  in  and  to  the  said  mortgaged 
premises  and  franchises,  and  all  and  any  part  thereof. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  the  pur- 
chaser or  purchasers  of  the  said  mortgaged  premises,  property,  fran 
chises,  at  such  sale,  be  let  into  the  possession  of  the  said  premises, 
property  and  franchises,  or  any  part  thereof,  that  may  be  so  sold, 
and  any  person  or  persons  who,  since  the  commencement  of  this 
suit,  was  or  have  been  in  possession  under  them,  or  any  or  either  of 
them,  deliver  possession  thereof  to  such  purchaser  or  purchasers,  on 


(43) 

production  of  the  deed  or  deeds  of  the  said  commissioners  for  said 
premises,  &c,  &c,  and  a  certified  copy  of  the  order  confirming  the 
report  of  sale  after  such  order  shall  become  absolute. 

In  the  Circuit  Court  of  the  United  States  at  Asheville,  in  and  for  the  Wes- 
tern District  of  North  Carolina,  November  Term,  A.  D.,  1872. 

Henry  Clews,  Hiram  Sibley,  Plaintiffs,  ~|         Order  of  Transfer,  &c,  made, 

Against  f  November  14,  1872 

The  Western  North  Carolina  Railroad  j 
Company  and  others,  Defendants.      J 

By  consent  of  parties  and  on  motion,  \       ^  Order  of  trans- 

It  is  ordered  by  the  Court,  that  this  cause  be  transferred  to  the  Circuit  Court    fer  t0  circuit 
-of  the  United  States,  at  Greensboro,  then  to  be  further  heard,  &c.     The  clerk  of  C't  at  Greens- 
this  Court,  will  certify  this  order,  and  send  the  original  papers  in    the  cause   to    boro' 
,the  clerk  of  said  Court  at  Greensboro.  Rqbt.  P.  Dick, 

'  ..,.  Judge. 

Be  it  rembered  that  a  Circuit  Court  of  the  United  Stated  of  America, 

and  held  at  Asheville,  in  the  Western  District  of  North  Carolina,  on  the 
day  of  ,  A.  D.,  1872,  present  and  presiding  the 

Honorable  Robert  P.  Dick,  Judge,  &c,  &c,  the  following  among  other  proceed- 
ings- were  had,  and  that  is  to  say:  f-:  • 
■  ~>y                     " -    •  {               *  j 
Henry  Clews,  and  Hiram  Sibley,  Plaintiffs,"]          Order  of  Tiansfer,  &c, 

.    Against  f        made  November  14th,  1872. 

The  Western  North  Carolina  Railroad      j      •■ 
Company  and  others,  Defendants.  J 

By  consent  of  parties  and  on  motion. 

It  is  ordered  by  the  Court  that  this  case  be  transfered  to  the  Circuit  Court  of 
the  United  States  at  Greensboro,  there  to  be  further  heard,  &c.  The  clerk  of 
this  Court  will  certify  this  order,  and  send  the  original  papers  to  the  clerk  of 
said  Court,  at  Greensboro.  (Signed.)     Robt.  P.  Dick, 

Judge,  &c. 
United  States  of  America,  the  Western   District   of  North  Carolina,    Circuit  <■ 

Court  of  the  United  States,  at  Asheville,  in  and  for  the  said  District:     I,  E.  R.  -  q 

Hampton,  Clerk  of  said.  Court,  do  hereby  certify  that  the  foregoing  is  a  true,  ./.  . 

and  perfect  transcript  of  the  record,  and  order  made  in,  and  therein  named, 
and  stated,  and  I  do  hereby  certify  the  same  in  pursuance  of  said  order  to  the 
Circuit  Court  of  the  United  States,  at  Greensboro,  in  said  District.  Witness 
my  hand  and  seal  of  office  at  office  in  Asheville,  the  14th  day   of  November,  '  .5 

A.  D.,  1872.  E.  R.  Hampton,  Clerk, 

United  States  Circuit  Court.   Western  District  North  Carolina,  Asheville.  .;. 

In  the  Circuit  Court  of  the  United  States,  at  Greensboro,  in  and  for  the  Wes- 
tern District,  of  North  Carolina,  at  Chambers,  the  20th  day  of  February, 
A.  D.,  1873. 

Henry  Clews,  and  Hiram  Sibley,  and  others.  Plaintiffs, ")  Order   of  appointing 

Against  I  Samuel    McD.    Tate,  -   • 

The  Western  North  Carolina  Railroad  Company,  and  j       Receiver,  &c. 
others,  Defendants.  J 

The  parties  both  plaintiffs  and  defendants  apply  to  the  Court  praying   that  a  n  , 
Receiver  may  be  appointed,    to  take  possession  of  the    property,  and    effects    ing  a^Receiv" 
embraced  by  the  mortgage  mentioned,  and  set  forth  in  the  pleadings,  &c.  e3. 

The  Court  declines  to  appoint  a  permanent  Receiver  at  this  time,  and  defers 
the  same  until  the  next  regular  Term  of  the  Court,  but  in  the  mean  time, 


(44) 

It  is  ordered  by  the  Court,  that  Samuel  McD.  Tate,  Esquire,  of  the  county 
of  Burke  in  said  State,  do  and  he  is  hereby  appointed  Receiver  in  this  behalf, 
and  he  is  charged  as  such  Receiver  to  receive  into  his  possession  forthwith  all 
the  said  Railroad  and  all  other  property  of  any  kind  whatsoever,  including 
moneys,  rights,  credits,  &c.,  &c,  embraced  by  said  mortgage,  and  to  keep,  hold, 
use  and  care  for  the  same,  and  keep  the  same  safely,  and  in  proper  condition,  and 
repair,  and  expend  necessary  money  to  that  end  until  the  further  order  of  this 
Court  in  this  behalf,  and  make  report  of  his  action  under  this  order,  and  all 
other  orders  of  the  Court  affecting  him  as  such  Receiver  on  the  first  day  of  the 
next  Term  of  this  Court. 

It  is  further  ordered  that  the  said  Samuel  McD.  Tate  enter  into  bond  in  the 
sum  of  Twenty -five  Thousand  Dollars,  payable  to  the  United  States,  with  good 
security,  conditioned  for  the  faithful  discharge  of  his  duties  according  to  law,  as 
such  Receiver. 

And  now  the  said  Samuel  McD.  Tate,  Receiver,  &c,  tenders  his  bond  as  such 
Receiver,  payable  to  the  United  States,  in  the  sum  of  Twenty -five  Thousand 
Dollars,  conditioned  as  aforesaid,  with  James  W.  Wilson,  and  John  I.  Shaver, 
sureties,  which  is  accepted  and  approved  by  the  Court,  and  ordered  to  be  filed 
among  the  papers  in  this  case.  Robt.  P.  Dick, 

U.  S.  District  Judge. 

In  the  Circuit  Court  of  the  United  States,  at  Greensboro,  in  and  for  the    Wes- 
tern District,  of  North  Carolina,  of  April  Term,  A.  D.,  1S73. 

Henry  Clews,  and  Hiram  Sibley,  and  others.  Plaintiffs, ")  Order,  appointing 

VS.                                             I  William  A.  Smith 

The  Western  North  Carolina  Railroad  Company,  and  [  Receiver,  &c. 
others,  Defendants.                                                                j 

The  matter  of  the  application  for  a  Receiver  heretofore  made,  and  continued 
Order  appoint-  to  this  Term  being  debated  by  counsel  both  for  the  plaintiffs   and   defendants, 
nentaReceiv"  and  being  considered  by  the  Court, 

er.  The  Court  doth  order  that  a  Receiver  be  appointed  to  take   possession  of  the 

property  and  effects,  embraced  by  the  mortgage  mentioned,  and  specified  in  the 
pleadings,  Sic,  Sic 

And  the  Court  doth  further  order,  that  the  Honorable  William  A.  Smith,  of 
the  county  of  Johnston,  in  said  State  of  North  Carolina,  be.  and  he  is  hereby 
appointed  such  Receiver  in  this  behalf,  and  he  is  charged  as  such  Receiver,  to 
receive  into  his  possession  forthwith  from  Samuel  McD.  Tate,  Esquire,  the  tem- 
porary Receiver  appointed  in  this  behalf,  all  the  said  Railroad,  and  all  other 
property  of  any  kind  whatsoever  including  monies,  rights,  credits,  &c.,  &c, 
embraced  by  said  mortgage,  whether  in  the  hands  of  the  said  Sam'l  McD.  Tate, 
or  any  other  person,  and  to  keep,  and  to  hold,  use,  and  care  for  the  same,  and 
keep  the  same  safely,  and  in  perfect  condition,  and  repair,  &c,  &c,  and  expend 
all  necessary  sums  of  money  to  that  end  until  the  further  order  of  this  Court  in 
this  behalf,  and  make  report  of  his  such  action  under,  and  in  pursuance  of  this 
order,  and  other  orders  of  this  Court  affecting  him  as  such  receiver  on  the  first 
day  of  the  next  Term  of  this  Court  unless  the  Court  shall  order  him  to  make 
such  report  before  that  time. 

It  is  further  ordered  that  the  said  William  A.  Smith  as  such  Receiver,  &c, 
enter  into  bond  payable  to  the  United  States  in  the  sum  of  one  hundred  thous- 
and dollars,  with  good  and  sufficient  security  to  be  approved  by  the  Court,  con- 
.  ditioned  for  the  faithful  discharge  of  his  duty  as  such  Receiver,  according  to  law. 
And  now  the  said  William  A.  Smith,  Receiver.  &c,  as  aforesaid,  tenders  his 
bond  as  such  Receiver  payable  to  the  United  States  in  the  sum  of  one  Hundred 
thousand  dollars,  conditioned  as  aforesaid  with 

as  sureties  thereto, 
which  is  approved,  and  received  by  the  Court,  and  ordered  to  be  filed  among 
the  papers  in  this  cause. 


(45) 

It  is  further  ordered  that  Samuel  McD.  Tate,  the  present  Receiver,  as 
aforesaid  forthwith,  turn  over  to  his  successor,  William  A.  Smith,  Receiver, 
&c,  as  aforesaid,  the  said  Railroad,  and  all  other  properties  of  any  kind  what- 
soever including  monies,  rights,  credits,  &c,  &c,  alien,  lease,  come  into  his 
hands  as  such  receiver,  except,  such  property  and  sums  of  money  as  have  been 
properly  used  and  expended  under,  and  in  pursuance  of  the  orders  heretofore 
made  in  reference  to  him,  and  charging  him  as  such  Receiver,  and  to  take  the 
receipt  of  the  said  William  A.  Smith  as  such  Receiver,  &c,  for  the  same. 

And  it  is  further  ordered  that  the  said  Samuel  McD.  Tate  for  his  services  as 
such  temporary  Receiver  be  allowed  the  sum  of  five  hundred  dollars  to  be  retain- 
ed by  him  out  oi  the  amount,  so  in  his  hands.  Robt.  P.  Dick, 

U.  S.  District  Judge. 

United  States  Circuit  Court,  Western  District  of]      At  Spring  Term,  1873, 
North  Carolina,    Henry  Clews,    Hiram  Sibley,  I  at  Greensboro, 

and  others,  I  In    Equity. 

VS. 

The  Western  North  Carolina  Railroad  Company, 
and  others. 

In  this  cause  Wm.  A.  Smith  having   been  appointed    Receiver  of  the  said  . 

Railroad,  and  all  its  property,  estate  and  effects,  and  pending  the  litigation,  the  order  paving 
two  Boards  of  Directors,  one  called  the  Tate  Board,  and  the  other  Howerton  counsel. ' 
Board,  having  each  bona  fide,  and  in  what  they  conceived  to  be  their  duty  to 
the  road,  a  nd  its  true  interest,  employed  counsel  to  defend  the  interest  of  said 
road,  on  consideration  thereof  this  Court  declares  that  said  counsel  ought  to  be 
paid  out  of  the  funds  in  the  hands  of  the  Receiver  a  reasonable  compensation 
for  their  services  as  aforesaid,  it  is  therefore  ordered,  adjudged,  and  decreed  by 
the  Court  here,  that  the  said  counsel  be  allowed  as  retaining  fees  out  of  said 
funds  to  be  paid  by  the  said  Receiver  on  demand  thereof,  two  hundred  dollars 
each,  that  is  to  say  $200  each  to  Dillard,  Gilmer  &  Smith,  Ball  &  Keogh,  Mar- 
cus Erwin,  Scales  &  Scales,  W.  H.  Baily,  N.  W.  Woodfin,  B.  S.  Gaither,  and 
David  Coleman,  Esquires;  taking  their  receipts  respectively  therefor,  and  the 
firms  being  regarded  as  entitled  to  but  one  fee.  Robt.  P.  Dick, 

Judge. 

In  the  Circuit  Court  of  the  United  States,  in  and  for  the   Western  District  of 
North  Carolina,  at  Greensboro,  of  April  Term,  1874. 

Henry  Clews,  and  Hiram  Sibley,  Plaintiffs,]  Minutes  of  Decree  of  Foreclosure, 
Against  [    and  Sale,  April  17th,  1874. 

The  Western  North  Carolina  Railroad      f 
Company  and  others,  Defendants.  ) 

This  cause  is  this  day  heard,  &c,  &c.  Minutes  of  de- 

The  court  decrees  the  debts  of  the  parties  plaintiffs,  respectively  according  to    ciee" 
the  Master's  report 

The  Foreclosure  of  the  Mortgages. 

The  sale  of  the  property  embraced  by  the  mortgage  mentioned,  and  expressed 
in  the  pleadings,  and  that  the  sale  be  made  at  Salisbury,  after  40  days  notice  in 
the  following  newspapers  :  The  News,  and  Era,  at  Raleigh;  the  Patriot,  and 
the  New  North  State,  at  Greensboro;  the  American,  at  Statesville;  the  Watch- 
man, at  Salisbury;  the  Expositor,  and  Pioneer,  at  Asheville;  the  Observer,  and 
Democrat,  at  Charlotte;  three  weeks  in  each  weekly  paper. 

Appoints  Burgess  S.  Gaither,  Marcus  Erwin,  Thomas  Ruffin,  and  Thos.  B. 
Keogh,  commissioners,  with  full  power  to  sell  the  said  property  for  cash,  and 
make  report  to  the  Court  at  the  first  rule  day,  in  Greensboro,  after  the  sale 
takes  place, 

That  creditors  may  bid  for  the  property,  such  bidders,  after  paying  a  sufficient 


(47) 


nch 


from  the  said  the  Western  North  Carolina  Company,  upon  snch 
mortgage  bonds,  the  sum  of  twenty  eight  thousand,  three  hundred 
and  twenty  dollars,  ($28,320.00,)  and  of  this  sum,  twenty-four  thous 
and  dollars,  ($24,000.00,)  bears  interest  from  the  first  day  of  Octob 
er,  A.  D.,  1872,  until  paid. 

That  there  is  due  and  owing  to  the  said  Robert  A.  Lancaster,  from 
the  said  the  Western  North  Carolina  Railroad  Company,  upon  such 
mortgage  bonds,  the  sum  of  five  thousand  and  nine  hundred  dollars, 
($5,900,)  and  of  this  bum  five  thousand  do.lars  ($5,000)  bears  interest 
from  the  first  day  of  October,  A.  D..  1872.  until  paid. 

That  there  is  due  and  owing  to  the  said  Herbert  Atkinson,  from 
the' said  the  Western  North  Carolina  Railroad  Company,  upon  such 
mortgage  bonds,  the  sum  of  five  thousand  and  nir.e  hundred  dollars, 
($5,900.)  and  of  this  sum  five  thousand  dollars  ($5,000)  bears  inter- 
est from  the  first  day  of  October,  A.  D.,  1872,  until  paid. 

That  there  is  due  and  owing  to  the  said  James  C.  Mebane,  from 
the  said  the  Western  North  Carolina  Railroid  Company,  upon  such 
mortgage  bonds,  the  sum  of  five  thousmd  and  nine  hundred  doL 
laivj  ($5,900,)  ^nl  of  this  suai  tivjth  )U3inA  dollars  ($5,000)  bears 
interest  from  the  first  day  of  October,  A.  D.,  1872,  until  paid. 

That  there  is  due  and  owing  to  the  said  Proudfit,    from  the 

said  the  Western  North  Carolina  Railroad  Company,  upon  such 
mortgage  bonds,  the  sum  of  five  thousand  and  nine  hundred  dollars, 
($5,900,)  and  of  this  sum  five  thousand  dollars  ($5,000)  bears  inter- 
est from  the  first  day  of  October,  A.  D.,  1872,  until  paid. 

That  there  is  due  and  owing  to  the  said  the  North  Carolina  Rail 
road  Company,  from  the  said  the  Western  North  Carolina  Railroad 
Company,  upon  snch  mortgage  bonds,  the  sum  of  forty  one  thou, 
sand  three  hundred  and  forty  do.lars,  ($41,340,)  and  of  this  sum 
thirty  nine  thousand  dollars  ($39,000)  bears  interest  from  the  first 
day  of  October,  A.  D  ,  1872,  until  paid. 

That  there  is  due  and  owing  to  the  said  the  first  National  Bank 
of  Charlotte,  from  the  said  the  Western  North  Carolina  Railroad 
Company,  upon  such  mortgige  bonds,  tVe  sum  of  forty- two  thou- 
sand four  hundred  and  eighty  dollars,  ($42,480,)  and  of  this  sum 
thirty-six  thousand  dollars  ($30,000)  bears  interest  from  the  first  day 
of  October,  A.  D.,  1872,  until  paid. 

That  there  is  due  and  owing  to  the  said  Rufus  Y.  McAden,  from 
the  said  the  Western  North  Carolina  Railroad  Company,  upon    such 


(46) 

amount  of  the  purchase  money,  in  cash,  to  pay  the  costs  and  expenses  in  this 
behalf,  and  the  execution  of  the  trusts.  &c,  &c,  may  be  credited  with  their 
debts  in  payment  if  the  amount  for  which  the  property  shall  sell  is  sufficient  to 
pay  the  debts  otherwise  pro  rato, 

That  the  parties  to  the  suit  shall  be  in  all  respects  barred,  concluded,  estop- 
ped, &c,  i&c,  as  to  all  rights,  &c,  &c,  embraced  by  the  pleadings,  suit,  &c,  &c, 
th:'  present  assignees  of  the  plaintiffs  to  stand  in  their  stead  in  all  things  in  this 
behalf. 

Case  retained  for  further  orders.  Robt.  P.  Dick, 

Judge. 

Circuit  Court  of  the    United  States,)        Of  April  Term,  1874, 
Western  District  of  North  Carolina.}        at  Greensboro. 

Henry  Clews,  Hiram  Sibley.  Richard  Norr is,  and  Henry  ]  Decree  of 
Lattimer,  as  partners  in  trade,  as  Richard  Norris  &  |  Foreclosure, 
Son,  Robert  A.    Lancaster,    Herbert  F.    Atkinson,  \  and  sale. 

James  C.  Mebane, —  Proudfit,  and  The  North  | 

Carolina  Railroad  Company,  Plaintiffs,  J 

Against 

The  Western  North  Carolina  Railroad  Company,  (Eastern  Division,) 
Tod  R.  Caldwell,  Rul'us  Y.  McAden,  the  First  National  Bank,  of 
Charlotte;  John  Rutherford,  Hiram  Kelly,  Thos.  Y.  Greenlee,  Jas, 
Greenlee,  Mary  Carson,  A.  H.  Erwin,  N.  H.  D.  Wilson,  Assignee 
of  the. Bank  of  Cape  Fear;  R.  M.  Walker,  and  William  H.  Hower- 
ton,  Thomas  G.  Walton,  W.  A.  Eliason,  Richard  A.  Caldwell,  J.  J. 
Mott,  A.  H.  Shnford,  Rufus  L.  Patterson,  William  F.  Craig,  John 
I.  Shaver,  J.  R.  Ellis,  N.  W  Woodfin,  S.  H.  Flemming,  claiming 
to  be  President  and  Directors  of  the  Western  North  Carolina 
Railroad  Company,  Defendants. 

This  cause  having  been  brought  to  a  hearing,  at  this  term  upon 
the  bill  and  answers,  and  upon  the  report  of  the  Master,  John  W.  Decree  of  sale, 
Payne,  heretofore  appointed  by  order  of  the  Court,  which  report  is 
hereby  confirmed,  and  it  duly  appearing  that  personal  service  of  the 
process  herein  has  been  made  upon  all  the  parties  defendant,  in  due 
time,  and  no  one  appearing  to  oppose  the  same. 

It  is  hereby  ordered,  adjudged  and  decreed  that  there  is  due,  and 
owing  to  the  said  Hiram  Sibley,  from  the  said  the  Western  North 
Carolina  Railroad  Company,  upon  the  mortgage  bonds  mentioned, 
and  set  forch  in  the  said  Master's  report,  the  sum  of  six  hundred 
and  thirty  three  thousand  six  hundred  and  sixty  dollars,  ($633,660.00,) 
and  of  this  surm,  five  hundred  and  thirty  seven  thousand  dollars, 
($537,000.00,)  bears  interest  from  the  first  day  of  October,  A.  D., 
1872,  until  paid. 

That  there  is  due  and  owing  to  the  said  Richard  Norris  and  Henry 
Lattimer,  trading  under  the  name  and  style  of  Richard  Norris  &  Son, 


(43) 

mortgage  bonds,  the  aum  of  two  hundred  and  fifteen  thousand  thou- 
sand nine  hundred  and  forty  dollars,  ($215,940,)  and  of  this  sum 
one  hundred  and  eighty-three  thousand  dollars  ($183,000)  bears  in 
terest  from  the  first  day  of  October,  A.  D.,  1872,  until  paid. 

The  Court  doth  now  declare  that  the  defendant,  the  Western 
North  Carolina  Railroad  Company  (Eastern  Division)  did  execute 
and  deliver  the  mortgage  deed  set  forth  in  the  bill  of  complaint, 
and  did  issue  and  dispose  of,  for  valuable  consideration, 
the  said  bonds  and  coupons,  as  described  in  the  said  master's  report, 
and  that  default  has  been  made  by  the  said  defendant,  the  Western 
North  Carolina  Railroad  Company,  (Eastern  Division,)  in  the  pay- 
ment of  the  interest  on  said  bonds,  (the  said  coupons  having  been 
presented,  and  the  payment  of  the  interest  therein  specified,  having 
been  demanded,)  and  that  said  default  has  continued  for  more  than 
three  months  after  the  said  coupons  became  so  due  and  payable,  and 
still  continues,  whereby  the  principle  of  said  bonds  has  become  due 
and  payable,  according  to  the  terms  of  said  mortgage. 

It  is  further  declared  by  the  Court  that  there  are  no  other  liens  or 
encumbrances  on  the  said  mortgaged  premises,  having  priority  of 
said  mortgage,  and  that  the  said  mortgage,  and  each  of  the  said 
bonds  secured  thereby,  with  the  interest  thereon,  is  the  first  lien  on 
said  mortgaged  premises  and  property,  and  entitled  to  preference 
and  priority  over  any  and  every  other  lien,  mortgage  conveyance, 
judgment  or  claim,  whatsoever. 

Now,  therefore,  on  motion  of  plaintiffs'  counsel,  it  is  ordered,  ad- 
judged and  decreed,  that  the  mortgaged  premises  described  in  the 
bill  of  complaint,  that  is  to  say,  the  Railroad  known  and  designated 
as  the  Western  North  Carolina  Railroad,  (Eastern  Division,)  ex- 
tending from  the  Eastern  terminus  thereof,  in  the  city  of  Salisbury, 
in  the  State  of  North  Carolina,  to  its  Western  terminus,  in  the  coun 
ty  of  Buncombe,  in  said  State,  including  all  the  ways,  railways,  road 
beds,  rights  of  way,  depot  grounds,  and  other  lands,  all  tracks, 
bridges,  viaducts,  culverts,  fences,  depots,  station  houses,  engine 
houses,  car  houses,  wood  houses,  and  every  other  building  or  struc- 
ture, and  all  machine  shops,  and  other  shops  whatsoever,  held  at  the 
time  of  making  said  mortgage,  or  thereafter  acquired,  for  use  in  con- 
nection with  the  said  mentioned  and  described  Railroad,  or  the  bus- 
iness thereof,  including  also,  all  locomotives,  tenders,  cars,  and  other 
rolling  stock,  all  equipments,  machinery,  tools,  implements,  fuel  and 


(49) 

material  for  constructing,  operating,  repairing,  or  regulating  the 
said  Railroad,  or  any  part  thereof,  or  any  of  its  equipments  or  ap 
purtenances  whatever*  held  at  the  time  of  the  making  of  said  mort- 
gage, or  thereafter  acquired,  arid  all  of  which  are  de  dared  to  be  ap- 
purtenances and  fixtures  of  said  Railroad,  and  also  all  the  corporate 
franchise  of  the  said  the  Western  North  Carolina  Railroad  Oomptany, 
(Eastern  Division,}  and,  all  and  singular,  the  tenements,  heredita- 
ments, appurtenances,  franchises  and  rights,  belonging  to,  or  in  any 
wise  appertaining  to  said  Railroad,  and  said  Railroad  Company,  and 
all  the  estate,  right,  title,  interest,  property,  claim  and  demand  what 
soever,  of  the  said  the  Western  North  Carolina  Railroad  Company, 
(Eastern  Division,)  of,  in  and  to,  the  entire  above  described  premi- 
ses, with  the  appurtenances  set  forth  and  described  in  said  mortgage 
deed,  (unless,  on  or  before  the  day  of  sale  hereinafter  provided  for, 
the  said  the  Western  North  Carolina  Railroad  Company,  (Eastern 
Division,)  or  some  one  for  them,  shall  pay  off  and  discharge  the 
debts  so  as  aforesaid  declared  to  be  secured  by  said  m  rtgage,)  be 
8)ld  to  the  highest  bidler  at  public  auction,  at  the  Court  House 
door  in  the  said  city  of  Salisbury. 

It  is  further  ordered,  adjudged,  and  decreed  that  Burgess  S. 
Oaither,  Marcus  Erwin,  Thomas  Rnffin,  and  Thomas  B.  Keogh,  be, 
and  they  are  hereby  appointed  commissioners,  with  full  powers  to 
them,  or  a  majority  of  them,  to  sell  said  property  under  this  decree, 
and  in  pursuance  thereof,  they  shall  give  forty  (40)  days  notice  cf 
the  time  and  place  of  sale,  by  advertisement  in  the  following  public 
newspapers,  to  wit :  The  N.  Y.  Herald,  at  New  York,  The  National 
Republican,  at  Washington,  D.  d,  The  News  and  Era,  at  Ii&  eigh, 
The  Patriot,  and  New  North  State,  at  Greensboro,  The  Watchman,- 
at  Salisbury,  The  Recorder,  at  Hillsboro,  The  American!,  at  States- 
ville,  The  Citizen,  Expositor,  and  Pioneer,  at  Asheville,  The  Observ- 
er, and  Democrat,  at  Charlotte.  Such  advertisements  to  be  inserted 
for  three  weeks,  in  the  weekly  issues  of  said  newspapers. 

It  is  further  ordered,  adjudged  and  decreed,  that  the  purchaser 
or  purchasers,  at  such  sale,  shall  pay  to  the  said  commissi  ners, 
in  cash,  on  the  day  of  sale,  the  sum  of  ten  thousand  dollars,  ($10.- 
000,)  and  the  balance  of  the  purchase  money,  on  the  day  that  said 
sale  shall  be  confirmed  by  this  Court,  and  that  said  Commissioners 
shall  make  full  report  of  said  sale  and  the  amount  paid  to  them,  to 
this  Court,  at  Greensboro,  on  the  first  rule  day  that  shall  occur  after 


the  said  sale,  and  no  order  of  confirmation  shall  be  made  before  the 
rule  day  next  succeeding-  that  to  which  the  report  is  made. 

It  is  further  ordered,  adjudged  and  decreed,  that  William  A. 
Smith,  who  has  heretofore  been  appointed,  and  now  is  Receiver  of 
the  Western  North  Carolina  Railroad  Company,  (Eastern  Division,) 
at  the  same  rule  day  at  which  the  said  commissioners  shall  make 
their  report  of  sale,  shall  file  in  this  Court  a  f  nil  and  accurate  account 
of  his  receipts  and  disbursements,  and  shall  then  and  there  pay  over 
to  the  said  commissioners  whatever  net  balance  may  be  ascertained 
to  be  in  his  hands,  or  due  from  him  as  such  Receiver, 

It  is  further  ordered,  adjudged  and  decreed,  that  the  said  com 
missioners,  out  of  said  moneys  in  their  hands,  shall  pay  off  and  dis- 
charge all  the  costs  and  necessary  expenses  of  this  action,  to  be  taxed 
by  the  clerk,  and  all  such  expenses,  charges  and  allowances,  as  may  be 
made  and  fixed  by  the  Court,  for  the  execution  of  this  decree,  and 
that  the  said  commissioners,  after  the  payment  of  such  costs,  charges 
and  allowances,  shall,  with  the  unexpended  balance  in  their  hands, 
together  with  the  balance  of  the  purchase  money,  pay  off  and  dis- 
charge the  debts  hereinbefore  declared  to  be  due  and  owing  from 
the  Western  North  Carolina  Railroad  Company,  (Eastern  Division,} 
to  the  parties  mentioned  in  this  decree,  and  take  proper  acquittances 
therefor.  Rut  in  case  there  shall  not  be  a  sufficiency  to  pay  all  of 
said  debts,  then  whatever  sum  there  may  be  shall  be  applied  to  said 
debts,  pro  rato,  and  it  is  further  directed  that  the  said  com- 
missioners, (except  as  to  the  said  sum  of  $10,000  directed  to  be  paid 
on  the  day  of  sale,)  may  accept  from  the  purchaser  or  purchasers  at 
the  election  of  the  latter,  the  said  mortgage  bonds,  and  past  due 
c  mpons  thereof,  in  such  proportion  to  the  par  value  of  said  bonds 
and  coupons  as  the  amount  of  the  purchase  money  bears  to  the 
whole  amount  of  said  bonds  and  coupons,  that  is  to  say,  that  the 
said  purchaser  or  purchasers,  provided  they  be  holders  of  said  mort- 
gage bonds,  may  retain  their  shires  of  the  purchase  money  by  sur- 
rendering to  the  commissioners  the  said  mortgage  bonds,  to  an 
equal  amount  in  value. 

It  is  further  ordered,  adjudged  and  decreed  by  the  Court,  that  so 
soon  as  the  said  sale  shall  be  confirmed,  the  purchaser  or  purchasers 
thereat,  shall  be  let  into  immediate  possession  of  said  premises,  and 
all  and  every  part  thereof,  and  it  is  directed  and  ordered  that  all  and 
every  person  who,  since  the  commencement  of  this  action,  may  have 


of  sale. 


(50 

come  into  possession  of  said  premises  and  property,  shall  deliver 
and  surrender  the  same  to  said  purchaser  or  purchasers  upon  pro 
duction  to  him  or  them,  of  a  deed  from  said  commissioners  to  such 
premises  and  property,  and  further  all  and  every  one  of  these  de- 
fendants, and  all  and  every  person  claiming  by,  from,  through  or 
under,  him  or  them,  be  forever  barred  and  foreclosed  of  any  and  all 
right,  title,  interest  and  equity  of  redemption,  in  and  to  the  said 
premises  and  property  so  sold,  and  every  part  thereof, 

Eobt,  P.  Dick,  U.  S.  Dist  Judge. 

Hugh  L.  Bond,  (J't.  Judge. 
W.  S.  Bxll,  Plaintiffs'  Alt  y. 

Henry  Clews,  Hiram  Sibley  and  others,      ~|  Circuit     Court     of    the 
against  !  United  States,  Western 

The    Western    North    Carolina  Railroad  [  District   of   North  Caro- 
Company  and  others.  J  lina. 

L  By  virtue  of  a  decree  rendered  in  the  above  cause  by  said  Circuit 
Couit  at  April  term,  1875,  B.  S.  Gaither,  M»  Erwin,  T.  B.  Keogh  0rder  aMvV,n_ 
and  Thomas  Kuffin,  were  appointed  commissioners  to  &ell  the  Rail-  ii"^onili 
road  known  and  designated  as  the  Western  North  Carolina,  Railroad, 
(Eastern  Division,)  extending  from  the  Eastern  terminus  thereof,  in 
the  city  of  Salisbury,  to  its  Western  terminus,  in  the  county  of  Bun 
combe,  including  all  the  ways,  railways,  road  bed*,  rights  of  way, 
depot  grounds,  and  othev  lands,  all  tracks,  bridges,  viaducts,  cul- 
verts, fences,  depots,  station  houses,  engine  houses,  car  houses, 
wood  houses,  and  everj  other  building  or  structure,  and  all  machine 
shops,  and  other  shops,  whatsoever,  held  at  the  time  of  making  cer- 
tain mortgage  in  the  pleadings  referred  to,  or  thereafter  acquired 
for  use,  and  in  consideration  with  said  Railroad,  including-  all  loco- 
motives, tenders,  cars,  and  other  rolling  stock,  all  equipments,  ma 
chinery,  tools,  implements,  fuel  and  material  for  constructing,  ope- 
rating, repairing  or  regulating  the  said  Railroad,  or  any  part  there- 
of, or  any  of  its  equipments  or  appurtenances  whatsoever,  held  at 
the  time  of  making  said  mortgage  or  thereafter  acquired. 

II.  And  also  all  the  corporate  franchises  of  the  said  Railroad  Com 
pany,  and,  all  and  singular,  the  tenements,  hereditaments,  appurte- 
nances, franchises  and  rights  belonging  to,  or  in  any  way  appertain 
lag  to,  said  Railroad  and  said  Railroad  Company,  and  all  the  estate, 
rights,  title,  interest,  property,  claim  and  demand,  whatsoever,  of  the 
said  Railroad  Company,  of,  it,    and  to,  the   entire  above  described 


premise!?,  with  the  appurtenances  set  forth  and  described  in  said 
mortgage  deed,  and  the  said  commissioners  sell  the  same  upon  the 
following-  terms  : 

Ten  thousand  dollars  of  the  purchase  money  will  be  required  to 
be  paid  said  commissioners  at  the  time  and  place  of  sale,  for  which 
the  receipt  of  the  commissioners  present  will  be  given. 

The  residue  of  said  purchase  mcney  will  be  required  to  be  paid 
to  said  commissioners  on  the  day  of  the  confirmation  of  their  report 
of  sale,  and  on  the  day,  and  at  the  time  of  such  confirmation  the 
commissioners  will  be  ready  io  deliver  the  deed. 

III.  That  in  paying  t«e  residue  of  the  purchase  money  after  de- 
ducting the  $10,000  cash  pa}inent,  the  purchaser,  provided  he  be 
a  holder  cf  the  bonds  secured  in  said  mortgage,  may  retain  his  share 
of  the  purchase  money  by  surrendering  to  the  commissioners  the 
said  bonds  to  an  equal  amount  in  value. 

IV.  The  purchaser  to  bo  let  into  possession  upon  confirmation 
of  this  sale  aud  a  compliance  with  the  terms  thereof. 

V.  The  biddings  will  be  kept  ope*}  after  the  property  is  struck 
down,  and  in  case  the  purchaser  shall  fail  to  comply  with  the  terms 
of  the  sale  by  paying  down  the  sum  of  ten  thousand  dollars,  ($10, 
000,  a  resale  will  take  pla^e  immediately,  under  the  direction  of  the 
said  commissioners,  and  on  the  same  terms,  aud  the  purchaser  will 
be  held  bible  for  any  deficiency  there  may  be  between  the  sum  he  may 
bid  and  that  for  which  the  property  may  sell  at  such  resale,  and  also 
for  any  costs  and  expenses  arising  on  such  resale. 

B.  S.  Gaithek,      "J 

Thos.   B.  Keogs,  I  n  .     . 

Tnos  Buffi*,        f  Commissioners. 

Mabcus  Erwdt.     J 
I,  A.  S.  M>rrimon«  hare  purchased  the  above   described   property 
at  and  for  the  price  of  ($825,000,  and  hereby  promise   and   agree  to 
comply  with  the  terms  and  conditions   of  sale,  as   above  set   forth. 
Jane  22ud,  1875. 

A.  S.  Mebbimon. 

Henry  Clews,  Hiram  Sibley,  and  others,"]    Circuit    Court   of  the 
Against  i  United  States,  Western 

The  Western   North    Carolina    Railroad  f  District   of  North  Car- 
Report  of  Com-     Company,  (E.  D..)  and  others.  J       olina. 
To  the  Honorable  the  Judges  of  said  Court  : 
The  undersigned  commissioners  beg  leave  to  report  that  in  obe- 


unssioners. 


(53) 

dience  to  the  decree  of  this  Court  made  at  April  Term,  1875,  and 
after  duly  advertising  as  directed  in  said  decree  they  proceeded, 
on  the  22nd  day  of  June,  A.  D.,  1S75,  at  tne  Court  House  door,  in 
the  city  of  Salisbury,  to  sell  to  the  highest  bidder,  at  publie  auction 
all  the  property,  estate,  effects,  rights,  title,  franchises,  liberties, 
and  interest,  mentioned  in  said  decree  as  being  the  property  of  the 
defendant  the  Western  North  Carolina  Company,  (Eastern  Div- 
ision); when  and  where  A.  S.  Merrimon  became  the  purchaser  of 
the  same  as  the  last,  and  highest  bidder,  at  the  price  of  Eight 
Hundred  and  Twenty-five  Thousand  Dollars,  and  was  declared 
by  us  to  be  the  purchaser  thereof,  and  in  our  opinion  the  amount 
bid  bv  him  is  as  much  as  said  property  is  likely  to  bring  at  public 
auction  for  cash. 

We  beg  leave  further  to  report  that  the  said  Merrimon  in  obedi- 
ence to  the  said  decree,  as  well  as  the  terms  of  sale  imposed  by 
ourselves,  paid  us  the  sum  of  ten  thousand  dollars  at  the  time  and 
place  of  sale. 

And  that  he  signed  a  memorandum  of  the  terms  and  conditions 
of  sale,  whereby  he  promised  and  agreed  to  comply  with  all  the 
directions,  and  requirements  set  forth  in  the  decree,  and  imposed 
by  us  in  pursuance  thereof. 

We  further  report  that  the  said  sum  of  ten  thousand  dollars  so 
as  aforesaid  paid  us,  we  have  placed  on  deposit  in  the  Bank  of 
Messrs.  Wilson  &  Shober,  at  Greensboro,  in  said  District,  and  ask 
the  sanction  of  the  Court  thereto. 

All  of  which  is  respectfully  submitted,  June  22,  1S75. 

B.  S.  Gaither, 
T.  Ruffin, 
Marcus  Erwin, 
Thos.  B.  Keogh. 

To  the  Clerk  of  the  Circuit  Court  of  the  United  States,  at  Greens- 
boro, in  and  for  the  Western  District  of  North  Carolina  : 
Col.  Robert  Strange,  Attorney,  &c,  &c,  is  authorized  by  us  to 

have  and  control  the  mortgage  bonds  of  the  Western  North  Caro-  Order  for  cer- 

00  tain  bonds, 

lina  Eailroad  Company,  which  we  turned  over  to  you    under  the 

order  of  said  Court,  the  same,  being  the  bonds  which  we  control- 

ed  as  counsel  for  Hiram  Sibley  in  the  suit  pending  in    said    Court 

entitled  :     Henry  Clews  and  Hiram  Sibley  and  others  against  the 

Western  North  Carolina  Railroad  Company  and  others. 

Phillips  &  Merrimon, 

Raleigh,  July  27th,  1875.  Attorneys. 


(54) 

The  Clerk  of  the  Circuit  Court  of  the  United  States  for  the  We  - 
tern  District  of  North  Carolina  will  issue  the  confirmation  by  the 
Court  of  this  sale  made  of  the  Western  North  Carolina  Railroad, 
deliver  to  the  commissioners,  Gov.  Brogden,  and  Messrs.  Armfie'd 
and  Robinson,  the  bonds  referred  to  in  the  within  order  of  Messrs. 
Phillips  &  Merrimon.  Edward  Matthews, 

by  his  attorney, 

July  30th,  1S75.  Robert  Strange. 

In  the  Circuit  Court  of  the  United  States,  at  Greensboro,    and  for 
the  Western  District  of  North  Carolina,  August  2d,  A.  D.,  1S75. 
To  the  Honorable  the  Judge  of  said   Court  :■ 

The  petition  of  Curtis  H.  Brogden,  Governor  of  the  State  o 
North  Carolina;  R.  F.  Armfield,  President  of  the  Senate  of  said 
State;  and  James  L.  Robinson,  Speaker  of  the  House  of  Repres- 
entatives of  said  State,  respectfully  represent  unto  you,  that  bv 
virtue  of  an  Act  of  Assembly  of  said  State,  entitled  An  Act  :  "in 
.  relation  to  the  Western  North  Carolina  Railroad,"  Ratified  the 
13th  day  of  March  A.  D.,  1875,  they  are  empowered  as  com- 
missioners, &c,  &c,  in  behalf  of  said  State  to  purchase  the  debts 
against  the  Western  North  Carolina  Railroad  Company,  and  to 
purchase  the  Railroad  of  said  company,  and  the  property  apper- 
taining to  the  same  to  be  made  under  a  decree  of  the  said  Court 
made  in  the  law  entitled  Henry  Clews  and  Hiram  Siblev,  and 
others  against  the  Western  North  Carolina  Railroad  Company, 
and  others,  now  pending  in  said  Court.  That  for  good  and  valu- 
able consideration,  they 

all  the  debts  and  bonds  embraced 
Petition  of  c  Dy  *-ne  sai^  Decree  made  in  the  said  suit,  and  lease  the  same  to  be 
H.  Brogden.  produced  in  the  Honorable  Court,  when  required  that  said  railroad 
and  other  property  appertaining  to  it  were  bid  off  at  the  sale  of 
the  same  under  said  Decree  on  22d  day  of  June  last,  first  by  A.  S. 
Merrimon,  for  the  price  of  eight  hundred  and  twenty-five  thousand 
dollars,  and  he  gives  cash  check  for  ten  thousand  dollars  of  said 
purchase  money,  that  on  the  ame  day  the  said  A.  S.  Merrimon, 
for  good  and  valuable  considerations,  transferred  his  said  bid  for 
said  property  to  your  petitioners,  for  the  said  State,  and  your  peti- 
tioners paid  the  said  ten  thousand  dollars  to  the  commissioners,  to 
sell  said  road,  &c,  required  to  be  paid  in  advance,  and  the  said 
A.  S.  Merrimon  received  from  said  commissioners  to  sell 


(55) 

that  your  petitioners 

represented.     The  bidders  for  said  property  but  for  and  in 

your  petitioners  offered  in  payment  of  the  said  pre- 
payment on  the  day  of  said  sale.  That  your  petitioners  all  will 
entitled  in  all  respects  to  all  the  debts  and  bonds  embraced  by  said 
decree,  and  have  purchased  duly  assigned  to  them  the 

bid  of  the  said  A.  S.  Merrimon  for  said  property,  and  the  premises 
are  ordered. 

They  pray  your  leave  to  make,  and  order  at  making  them  the 
creditors  of  record  in  said  suit,  and  entitled  to  the  benefits  of  said 
decree,  and  to  substitute  them  as  the  bidders  for  said  property  in 
place  of,  the  said  A.  S.  Merrimon,  and  your  petitioners  will 
ever  pray,  &c.  Dillard  &  Gilmer,  Attorneys  for 

Curtis  H.  Brogden,  Governor 

of  the  State  of  North  Carolina, 
R.  F.  Armfield,  President   of  the 

Senate, 
James  L.  Robinson,  Speaker 
of  House  of  Representatives. 

The  undersigned  creditors,  to  wit  :  Hiram  Sibley,  Richard 
Norris,  and  Henry  Lattimer,  as  partners  in  trade  as  Richard  Norris 
&  Son,  Robert  a'  Lacaster,  Herbert  F.  Atkinson,  James  C.  Me-  8£K|$0rriJ 

bane, Proudfit,    the   North    Carolina    Railroad   Company,   &  Son- 

Rufus  Y.  McAden,  the  First  National  Bank  of  Charlotte,  Erwin, 
Matthews,  of  Hiram  Sibley,    and    others, 

and  R.  T.  Wilson,  President  of  the  East  Tennessee,  Virginia  and 
Georgia  R.  R.  Co.,  respectfully  represent  that  they  have  sold  their 
respective  claims  in  the  decree  mentioned  in  the  foregoing  petition 
to  the  said  commissioners  on  the  part  of  the  State  of  North  Caro- 
lina, and  have  no  further  interest  in  the  same,  and  respectfully  pray 
that  the  orders,  and  decrees,  prayed  for  in  the  foregoing  petition 
may  be  made.  Norris  &  Son, 

by  Phillips  &  Merrimon, 
A.  S.  Merrimon  for  himself 
as  bidder  of  said  property. 
R.  Y.  McAden,  for  himself, 
the  First  National  Bank  of  Charlotte,  the  North  Carolina  Railroad 


(56) 

Company,  Hiram  Sibley,  R.  A.  Lancaster,  H.  F.  Atkinson,  James 

C.  Mebane, Proudfit,  R.  T.  Wilson,  President,  &c. 

For  value  I  transfer  and  assign  to  Curtis  H.  Brogden,  Governor, 
&c,  R.  F.  Armfield,  President  of  the  Senate,  and  James  L.  Rob- 
inson, Speaker  of  the  House  of  Representatives,  &c,  commission- 
ers, &c,  to  purchase  the  Western  North  Carolina  Railroad  and 
the  property  appertaining  to  the  same,  &c,  my  bid  for  the  said  the 
Western  North  Carolina  Railroad,  and  the  other  property,  and 
Assignment  of  appertaining  to  the  same  made  on  the  22nd  day  of  June,  A.  D., 
mon,'  em"  1S75,  and  represent  the  Circuit  Court  of  the  United  States,  at 
Greensboro,  in  the  Western  District  of  North  Carolina,  to  sub- 
stitute the  said  commissioners  for  myself  as  the  purchasers  of  said 
property,  and  direct  to  them  to  be  made  to  the  State  accordingly 
as  they  may  ask.  Given  under  my  hand  the  23d  day  of  June,  A. 
D.,  1875.  A.  S.  Merrimox. 

Henry  Clews,  Hiram  Sibley,  and  others")  Circuit  Court    of 

Against                             I  United    States. 

The  Western   North  Carolina  Railroad,  t  Western  District  of 

(Eastern  Division,)  Company  &  others.  J  North  Carolina. 

To  the  Honorable  the  Judges  of  said  Coui't  : 

We,  the  undersigned,  who  are  a  majority  of  the  commissioners 
appointed  by  this  Court  to  sell  the  Western  North  Carolina  Rail- 
road, (Eastern  Division,)  beg  leave  to  file  this  report  supplemental 
to  that  heretofore  filed  in  this  cause. 

We  respectfully  report  that  on  the  day  of  the  sale  of  said  pro- 
perty in  the  city  of  Salisbury,  and  after  their  report  of  sale  was 
prepared,  stating  that  A.  S.  Merrimon  was  the  purchaser  as  the 
last  and  highest  bidder  at  the  sum  of  eight  hundred  and  twenty  - 
five  thousand  dollars,  and  had  paid  in  to  us  the  sum  of  ten  thous- 
and dollars,  the  said  Merrimon,  in  our  presence  assigned  his  said 
bid  to  Curtis  H.  Brogden,  Governor  of  the  State  of  North  Caro- 
lina, R.  F.  Armfield,  President  of  the  Senate,  and  James  L.  Rob- 
inson, Speaker  of  the  House  of  Representatives,  commissioners, 
&c,  to  purchase  said  Western  North  Carolina  Railroad,  and  its 
appurtenances,  for  the  State  of  North  Carolina,  and  directed  that 
they  should  be  substituted  for  himself  as  the    purchasers  thereof, 

,   and  at  the  same  time  and  place  the  said  State  commissioners,  act- 
Supplemental  r 

iep'tofcom-ingr  for  and  in  behalf  of  the  State  of  North  Carolin-,  accepted  said 
m'rsofsale.        Q  ■  .  , 

assignment  of  his  bid  from  the  said  Merrimon,  and  requested  to  be 

reported  as  the  purchasers  of  said  properiy,  but  as  they  were  not 


(57) 

then  prepared  to  pay  to  the  undersigned  the  sum  ot  ten  thousand 
dollars,  according  to  the  requirements  of  your  Honor's  decree  and 
the  terms  of  our  sale,  we  declined  to  change  our  report  of  sale  until 
such  payment  of  ten  thousand  dollars  should  be  made  by  said 
'State  commissioners. 

We  beg  further  to  report  that  the  said  commissioners,  acting  for 
and  in  behalf  of  the  State  of  North  Carolina,  have  since  paid  to 
the  undersigned  the  said  sum  often  thousand  dollars,  and  declare 
themselves  ready  and  willing  on  the  part  of  this  State  of  North 
Carolina  to  comply  with  all  the  terms  of  our  sale,  and  the  re- 
quirements of  your  Honor's  decree. 

We  do  therefore  in  compliance  with  this  request,  and  directions 
of  the  said  Merrimon,  and  the  assent  of  said  State  commissioners, 
report  the  State  of  North  Carolina  as  the.purchaser  of  said  property 
at  the  said  sum  of  eight  hundred  and  twenty-five  thousand  dollars. 

All  of  which  is  respectfully  submitted  this  the  ad  day  of  August 
1875.  Thomas  Ruffin,  Com'r. 

B.  S.  Gaither,      Com'r. 
Thomas  B.  Keogh,  Com'r. 

In  the  Circuit  Court  of  the  United  States  at   Greens&oro,  in  and 
for  the  Western  district  of  North  Carolina,  August  12,  1875  .* 

Henry  Clews,  Hiram  Sibley  and  others,  ] 

against  ! 

The  Western  North  Carolina  Railroad   Com  f 

pany,  (Eastern  Division,)  and  others.  J 

The  undersigned  commissioners,  acting   under  an    order  of   this 
Honorable  Court,  heretofore  made,  directing  them  to    examine   and   cenation^y 
cancel  the  bonds  issued  by  the  Western   North  Carolina   Railroad   Commisrs 
Company,  (Eastern  Division,)  and  proven  in  the  above  entitled  cause, 
beg  leave,  respectfully,  to  report  that  they  have  performed  their  said 
duties. 

They  find  that  J.  C.  Mebane  has  filed  5  bonds,  each  for  $1,000, 
and  numbered  respectively,  506,  507,  508,  509  and  510,  which  cor 
respond  with  the  proof  made  in  this  cause. 

That  H.  F.  Atkinson  has  filed  five  bonds,  each  for  $1,000,  and 
numbered  respectively,  516,  517,  518,  519,  520,  which  correspond 
with  the  proof. 

That  R.  A.  Lancaster  has  filed  5  bonds,  each  for  $1,000.  numbered 
respectively,  501,  502,  503,  504,  505,  which  correspond  with  the 
proof  made  in  this  cause. 


(5S) 

That  J.  O  Proulfit  has  filed  5  bonds,  each  for  $1,000,  numbered 
respectively,  511,  512,  513,  514,  515,  which  correspond  with  the 
proof  made  in  this  cause. 

That  Norris  &  Son  have  filed  24  bands,  each  for  $1,000,  and  num- 
bered respectively,  542  to  545,  inclusive,  and  571  to  590,  inclusive, 
which  correspond  wich  the  proof  made  in  the  cause,  except  that  three 
bonds  have  one  coupon  cat  from  each. 

That  the  North  Carolina  Railroad  Company  have  filed  39  bonds, 
each  for  $1,000,  and  numbered  respectively  251  to  275,  inclusive, 
and  487  to  500,  which  correspond  with  the  proof  in  the  cause,  ex 
cept  that  each  bond  has  three  coupons  cut  off. 

That  the  First  National  Bank  of  Charlotte  has  filed  29  bonds, 
each  for  $1,000,  and  numbered  respectively  6  to  26,  inclusive,  484 
to  486,  inclusive,  and  551  to  555,  inclusive,  which  correspond  with 
the  proof  in  the  cause,  except  that  the  last  five  have  one  coupon 
cut  from  each. 

That  said  National  Bank  has  also  filed  70  other  bonds,  each  of  the 
value  of  $100,  and  numbered  respectively,  2,881  to  2,950,  which  cor 
responds  with  the  proof. 

That  Hiram  Sibley  has  filed  512  bonds,  each  for  $1,000,  and  num- 
bered respectively,  601  to  625,  inclusive,  26  to  250,  inclusive,  676  to 
700,  these  last  having  one  coupon  cut  from  each,  521  to  540,  inclu- 
sive, 591  to  600,  inclusive,  276  to  483,  inclusive,  also  250  bonds,  each 
for  $100,  and  numbered  respectively,  2.951  to  2,970,  inclusive,  3,051 
to  3,192,  inclusive,  2,971  to  3,050,  inclusive,  and  3,193  to  3,200,  in 
elusive. 

That  R.  Y.  McAden  has  filed  70  bonds,  ea^h  for  $1,000,  and  num 
bered  respectively,  1  to  5,  inclusive,  546  to  550,  inclusive,  with  one 
coupon  cut  from  each,  561  to  570,  inclusive,  with  one  coupon  cut 
from  each,  626  to  675,  inclusive,  of  them  last,  from  626  to  645  have 
one  coupon  cut,  and  from  646  to  675  have  two  cut;  also  1,050"  bonds, 
each  for  $100,  and  numbered  respectively,  1,451  to  1,500,  inclusive, 
and  1,551  to  1,600,  inclusive,  1,601  to  1,700,  inclusive,  1,301  to  1,450, 
inclusive,  1,760  to  1,950,  inclusive,  1,201  to  1,300,  inclusive,  1,701  to 
1,759,  inclusive,  all  with  one  coupon  cut,  1,951  to  2,200,  inclusive, 
with  three  coupons  cut,  and  2,701  to  2,800,  inclusive,  with  two  cou 
pons  cut. 

These  make  an  aggregate  for  said  McAden  of  $175,000,  which  is 
$8,000  less  than  he  made  proof  of  in  the  cause. 


(59) 

In  addition  to  the  above  there  are  bonds  of   which  no  proof  has 

been  made,  to  the  amount  of  $11,000.     All  of  said  bonds  filed,  have 

been  duly  cancelled  and  filed  with   the   clerk  of  this   Court,    all   of 

which  is  respectfully  submitted. 

Thomas  Rofftn,       ")  ~         .     . 
Thomas  B.  Keogh.  /  Commissioners. 

Circuit  Court  of  the  United  States^    Western    District  oj  North 

Carolina  ; 
Hiram  Sibley  and  Henry  Clews,  ~\    • 

against  i 

The  Western   North  Carolina   Railroad  Co.,  [ 

(E.  D.,)  and  others.  j 

To  the   Hons  H,    L.   Bond  and  R.  P.  T>ich,  Judges    of  said 

Court  .- 

We,  the  undersigned  commissioners,  appointed  to  examine  and 
cancel  the  bonds  issued  by  the  above  defendant,  respectfully  report: 

That  they  have  received  and  cancelled  each  bond   proved   in    this  Report otrom- 
suit,  and  deposited  the  same  in  the  office  of  the  clerk  of   this  Court. 

That  in  obedience  to  the  order  of  Your  Honors  they  have  deliv- 
ered to  the  State  of  North  Carolina,  the  purchaser,  a  deed  to  all  the 
property  of  the  said  defendant  which  was  described  in  the  decree 
made  herein. 

Thos.  Ruirrsr,       )  ^         .    . 

ThOS,     B.    KEOGH.|C°mmlSS10nerS' 

Henry  Clews,  Hiram  Sibley,  Richard  Norris  and)  In  the  Circuit 
Henry  Lattimer,  as  partners  in  trade  as  Richard  I  Court  of  the 
Norris  &  Son,  Robert  A.  Lancaster,  Herbert  F.  \  United  States, 
Atkinson,  James  C.  Mebane,  Proudfit,  and  the  j  Western  Dis 
North  Carolina  Railroad  Company.  Plaintiffs,  J  trict  of  N.  C, 
Against 

The  Western  North  Carolina  Railroad  Company, ) 
(Eastern  Division,)  Tod  R.  Caldwell,  Rufus  Y.  I 
McAden,  the  First  National  Bank  of  Charlotte,  \ 
John  Rutherford  ,  and  others,  Defendants.  J 

City,    County,  and  State  of  New   Tork. — 6'^'. 

.  ,  Assignment  nr 

Know  all  men  by  these  presents  :     That  I,  Hiram  Siblev,  of  the   5-  Sibley  to 

,  Edward    Ua- 

city  of  Rochester,  and  State  of  New  York,  lor  and  in    considera-    thews. 

tion  of  the  sum  of  two  hundred  and  seventy  thousand  dollars  to  me 

in  hand  paid  by  Edward  Mathews,    of  the  city,   county  and  State 

of  New  York,  the  receipt  whereof  is  hereby  acknowledged,  have 

sold,  assigned,  transferred  and  set  over,  and  by  these  presents,  do 


(6o) 

sell,  assign,  transfer,  and  set  over  unto  the  said  Edward  Matthews, 
all  the  right,  title,  interest,  property  and  possession  which  I  now 
have  or  which  I  may  hereafter  have  in  and  to  a  certain  suit  above 
set  forth  by  its  title,  new  pending  in  the  United  States  Circuit 
Couit  for  the  Western  District  of  North  Carolina,  wherein  Henry 
Clews,  myself  and  others  are  parties  plaintiff,  and  the  Western 
North  Carolina  Railroad  company,  (Eastern  Division,)  Tod  R. 
Caldwell,  and  others,  are  parties  defendant;  and  also  in,  and  to  the 
judgment  or  decree  of  foreclosm'e  heretofore  entered  therein,  and 
also  in  and  all  to  moneys  recovered  or  to  be  recovered  therein,  and 
there  under  which  may  be  or  become  due,  owing,  and  coming  to 
me,  the  said  Hiram  Sibley,  also  all  right,  title,  ownership,  property 
and  possession,  which  I,  the  said  Hiram  Ssbley.  have  or  may  have 
in  and  to,  and  in  respect  to  any  of  the  first  mortgage  bonds  of  the 
said  the  Western  North  Carolina  Railroad  company,  (Eastern 
Division,)  mentioned  and  described  in  the  pleadings,  and  decree 
in  said  suit,  and  also  all  the  right,  title,  claim,  interest,  and  demand 
which  I,  the  said  Hiram  Sibley,  may  or  can  have,  under  any  agree- 
ments or  contracts  connected  therewith,  now  outstanding  and  un- 
paid, I,  the  said  Hiram  Sibley,  by  these  presents,  intending  to 
convev  and  actually  conveying  unto  the  said  Edward  Mathews, 
all  my  right,  title,  interest,  property,  ownership  and  claim  ot  every 
kind,  and  nature  soever  in,  and  to  any,  and  all  the  mortgage  bonds 
of  the  said  the  Western  North  Carolina  Railroad  company,  Eastern 
Division,  both  endorsed  and  unendorsed,  and  also  in,  and  to  any 
shares  of  the  capital  stock  of  the  said  company,  more  especially  all 
my  right,  title,  interest,  property,  and  claim  in,  and  to  an  assignment 
of  a  certificate  of  some  8,000  shares  of  the  capital  stock  of  said 
company,  owned  and  held  by  various  shareholders,  and  by  them 
assigned  to  Samuel  McD  Tate,  and  by  the  said  Tate  assigned  to 
me,  the  said  Hiram  Sibley,  on  or  about  the  twelfth  day  of  Apil, 
eighteen  hundred  and  seventy-two. 

Subject,  however,  to  all  proceedings  had  and  contracts  taken, 
and  entered  into  with  reference  to  the  collection  of  the  said  mort- 
gage bonds,  and  the  foreclosure  of  the  mortgage  executed  by  the 
said  railroad  company  to  support  the  same,  and  subject  also  to  the 
operation  of  a  contract  heretofore  made,  and  entered  into  between 
me,  the  said  Hiram  Sibley,  and  R.  T.  Wilson,  President  of  the 
East  Tennessee,  Virginia  and  Georgia  Railroad  compan}',  bearing 
date  the  seventh  day  of  November,  eighteen  hundred  and  seventy- 


(6i) 

two,  since  assigned  by  the  said  R.  T.  Wilson  as  President  as  afore- 
said to  other  parties,  and  now  claimed  to  be  owned  and  controlled 
by  the  North  Carolina  Railroad  company,  which  contract  provides 
among  other  things  for  a  sale  on  or  before  the  seventh  day  of  No- 
vember next  ensuing  the  date  of  these  presents  under  certain  speci- 
fied conditions,  which  sale  and  conditions  the  said  Edward  Ma- 
thews is  to  make  and  perform  in  the  manner  therein  provided,  if 
performance  be  tendered  within  that  time  by  the  said  Wilson,  or 
his  assigns. 

It  is  hereby  distinctly  understood,  declared,  stipulated,  and 
agreed,  that  all  assignments,  transfers,  and  sales  herein  and  hereby 
made,  and  intended  to  be  made,  are  made'  without  warranty,  by 
or  recourse  to,  and  upon  me  the  said  Hiram  Sibley, 

It  is  hereby  further  distinctly  understood,  declared,  stipulated, 
and  agreed,  that  the  payment  of  one  hundred  thousand  dollars  in 
stock  at  par  of  the  Southern  Railroad  Security  Company,  hereto- 
fore made  to  me,  the  said  Hiram  Sibley,  specified  and  alluded  to 
in  the  contract  aforesaid  to  be  retained  by  me  the  said  Hiram  Sib- 
lev  in  any  event. 

It  is  hereby  further  distinctly  understood,  stipulated,  and  agreed 
that  the  said  Edward  Matthews  is  hereby  substituted  to  any  and 
all  the  rights  of  use  the  said  Hiram  Sibley,  and  any  responsibilities 
touching  the  mortgage  bonds,  stock  and  suit  aforesaid,  and  touch- 
ing the  contract  aforesaid  and  all  contracts  and  proceedings  relat- 
ing thereto,  and  connected  with  the  foreclosure  proceedings  in  the 
said  suit. 

In  witness  whereof  I,  the  said  Hiram  Sibley,  have  hereto,  set 
my  hand  and  seal  this  twenty-seventh  day  of  October,  eighteen 
hundred  and  seventy- four.  Hiram  Sibley. 

Signed,  sealed  and  delivered  in  the  presence  of 

Chas.  E.  Whitehead, 
Chas.  C.  Jonrs,  Jr. 

State  of  New  York,  City  and  County  of  New  York  : — SS. 

Be  it  remembered  that  on  this  thirteenth  day  of  April,  A.  D., 
1875,  before  me,  Edwin  F.  Coney,  Jr.,  a  commissioner  for  the 
State  of  North  Carolina,  duly  commissioned,  and  dwelling  in  said 
city,  personally  appeared  Charles  E.  Whitehead,  the  subscribing 
witness  to  the  foregoing  instrument  signed  by  Hiram  Sibley,  to  me 
personally  known,  who  on.  oath  duly  proves  the  execution    there- 


Minutes  of    Decree. 


(62) 

of,  for  the  purposes  therein  expressed. 
In  witness  whereof  I  have  hereunto  set  my  hand  and  official  seal. 

[Seal.]  Edwin  F.  Coney,  Jr., 

Commissioner  for  the  State  of  North    Carolina  in  New  York. 

In  the  Circtiit  Court  of  the  United  States  for  the   Western    Dis- 
trict of  North  Carolina,  at  Greensboro,  August  2nd,  1S75  .• 

Hiram  Sibley  and  others, 

vs. 
The    Western    North     Carolina    Railroad 

Company  and  others, 
mingsaieby  The  report  and  supplemental  report  filed,  of  the  commission 
om  rs,  c.  erg  a'pp0jnted  heretofore  to  sell  the  Railroad  and  property  appertaining 
to  the  same,  are  hereby  in  all  thing's  ratified  and  confirmed,  and  let 
a  decree  to  that  effect  be  drawn,  and  directing  the  said  commissioner  s 
to  sell  said  property,  to  execute  title  for  the  same  to  the  State  of 
North  Carolina,  on  the  surrender  of  the  bonds  mentioned  in  the  de 
cree  to  them,  and  a  satisfaction  of  the  decree  being  entered  by  said 
commissioners,  and  besides,  other  bonds,  mentioned  in  the  contract 
and  certificates  of  individual  stock  to  the  State. 

The  Receiver  is  to  deliver  possession  and  control  of  the  Riilroad 
and  all  its  appurtenances,  to  such  person  or  persons  as  he  may  be 
advised  by  the  Attorney  General  of  the  State  is  entitled  under  the 
laws  of  the  State  to  receive  the  possession  and  cuntrol  of  the  same. 
Commissioners  are  allowed  six  hundred  dollars  each. 

All  costs  of  the  cause,  and  costs  incident  thereto,  including  costs 
of  advertising,  are  to  be  paid  by  the  Receiver,  out  of  the  earnings  of 
the  Road  previous  to  the  1st  day  of  May,  1875,  and  the  residue  of 
such  earnings  prior  to  the  1st  day  of  May,  1875,  to  be  paid  to  the 
creditors  in  the  decree,  or  to  their  authorized  agent,  and  the  case 
for  the  minutes  of  decree. 

Robt.  P.  Dick,  Judge. 

Circuit  Court  of  the  united  States,  Western  District  of  North 
Carolina,  at  Greeizsboro,  1st  Monday  in  August,  1875  : 

Henry  Clews,  Hiram  Sibley,  Richard  Norris,  Latimer,  as  part- 

ners in  trade,  as  Richard  Norris  &  Son,  Robt.  A.  Lancaster.  Her- 
bert T.  Atkinson,  James  C.  Mebane,  Proudfit,  and  the  North 
Carolina  Railroad  Company,  Plaintiffs, 

AGAINST 

The  Western  North  Carolina  Railroad  Company,  (Eastern  Division, ) 


(63) 

Tod  R.  Caldwell,  Rufus  Y.  McAden,  the  First  National   Bank   of 
Charlotte,  Jokn  Rutherford,  Hiram  Kelley,    Thos.    Y.    Greenlee, 
Ja:nes  Greenlee,  Miry   Carson,  A.    H.    Erwin,    N.  H.  D.    Wilson, 
assignee  of  the  Bank   of  Cape  Fear,    R.  M.  Walker  and  Win.  H. 
Howerton,  Thos.  G.  Walton,   W.  A.  Eliason,  Richard  A.  Caldwell, 
J.    J.    Motfc,    A.     H.    Shuford,   Rufus    L.    Patterson,   Wm.    H. 
Craig,  John  I.  Shaver,  J.  R.  Ellis,  N.    W.  Woodfin,    S.    H.  Flem- 
ming,  claiming   to  be  President   and   Directors   of  the   Western 
North  Carolina  Railroad  Company,  Defendants  : 
In  this  cause,  Burgess  S.  Gaither,  Marcus  Erwin,    Thomas  Ruffin 
and  Thomas  B.  Keogh,  heretofore   appointed  by    a   decree    of  this 
Court  to  make  sale  of  the  Western  North  Carolina  Railroad,    (East- 
ern Division,)  extending  from  the  E  ist  terminus  thereof,  in  the  city 
of  Salisbury,  in  the  State  of  North  Carolina,  to  its   Western    termi- 
nus, in  the  county  of  Buncombe,  with  all  its  fixtures  and    appurten   D  fl 
ances,  and  franchises,  as  specified  in  said  decree,  having  made  report   ?>/"£  sale  t0 
of  their  sale,  showing  A.  S.  Murrimon  to  be  the  purchaser,    at  eight 
hundred  and  twenty  five  thousand  dollars,    and    said  commissioners 
having,  since  the  m  iking  of  s  lid  report,  by  leave  of    the  Court,  filed 
a  supplemental  report,  showing  the   transfer    of  bid   by   said   A.  S$ 
Merrimon  to  the  State  of  North  Carolina,    represented   in   that    be- 
half by  Cartis  H.  Brog den,  Governor,  R.  F.  Armfield,    President  of 
the  Senate,  James  L.  Robinson,  Speaker  of  the  House  of   Represen- 
tatives, under  an  act  of  the  Geueral  Assembly  of    said  State,  ratified 
the  13th  day  of  March,  1875,  and  further  showing,  that  the  State  of 
North  Carolina,  acting  by   her   said  commissioners,    had  made    the 
cash  payment  of  ten  thousand  dollars,  required  by   the  terms  of  the 
original  decree  in  the  cause,  and  had  acquired  and  become  the  owner 
of  all  the  mortgage   bonds   provided   for  and   in  the  former  decree, 
and  in  all  things  was  ready  and  willing  to  do  and  perform    whatso 
ever  this  Court  should  order  and  direct,  and  the  said  State  of  North 
Carolina,  acting  by  her  said  commissioners,   and  the  said  A.  S.  Mer- 
rimon for  himself  as  the  origin  d  bidder   and  purchaser,  and  all  the 
holders  of  the  mortgage  bonds  provided  for  and  merged  in  the  for- 
mer decree  aforesaid,  having  by  leave  of   the   Court,  filed  their  peti 
tions  respectively,  wherein  the  transfer  of  the  bid  by  A.  S.  Merrimon 
to  the  State  of  North  Carolina,  and  also  the  ownership   by  the  said 
State  of  all  of  said  mortgage  bonds  is  admitted,  and  a   prayer  made 
that  the  State  of  North  Carolina  should  be  accepted  as  the  purchas- 


(64) 

er,  and  title  a  made  to  her,  and  no  exception  being  taken  to  said  re- 
ports of  sales.  Now,  in  consideration  thereof,  and  it  appearing  to 
the  Court  that  the  sale  was  for  a  fair  price,  it  is  ordered,  adjudged 
and  decreed  by  the  Court  that  the  said  sale  be  in  all  things  con- 
firmed, and  that  the  State  of  North  Carolina  be  held  and  taken  as 
the  purchaser,  in  the  place  of  A.  S.  Merrimon,  and  that  the  commis- 
sioners to  make  sale  be  allowed  for  their  services  in  this  behalf,  in- 
cluding the  execution  of  deed  hereinafter  ordered,  the  sum  of  six 
hundred  dollars,  each  to  be  taxed  in  the  bill  of  costs  to  be  paid,  as 
will  be  hereafter  ordered  and  directed. 

And  the  holders  and  owners  of  the  mortgage  bonds  provided  for 
in  the  former  decree,  and  the  said  commissioners  representing  the 
State,  having  made  a  contract  in  writing  in  relation  to  the  transfer 
of  their  said  bonds,  and  their  rights  and  interest  in  the  original  deciee 
aforesaid,  to  the  said  State,  and  defining  the  mode  and  manner  and 
proportion  of  payment  to  be  made  to  said  holders  in  case  the  said 
State  should  become  the  purchaser,  at  a  sum  less  than  the  aggre- 
gate of  their  several  amounts,  and  also  therein  agreeing  as  to  the 
disposition,  and  how  to  be  made,  of  all  the  net  funds  in  the  hands 
of  William  A:  Smith,  the  Receiver  of  the  said  Railroad  Company  and 
its  property,  up  to  the  1st  day  of  May,  1875,  and  also  as  to  the  rest  in 
his  hands  on  and  since  said  day,  and  also  containing  an  agreement 
for  the  surrender  of  the  Railroad  and  all  its  property,  by  the  Receiv- 
er, to  .the  State  of  North  Carolina,  and  the  said  within  agreement, 
with  the  exhibits  therein  referred  to  and  annexed  thereto,  being  filed 
in  this  cause  by  the  contracting  parties,  with  the  consent  of  the 
Court,  and  that  the  material  points  thereof  may  be  regarded  and 
provided  for  in  the  decree,  and  in  any  others  which  may  be  hereaf- 
ter entered  in  the  course  of  this  cause. 

Now,  this  cause,  coming  on  to  be  heard,  on  the  papers  formerly 
read,  the  original  decree  of  foreclosure  and  sale  heretofore  made, 
and  the  order  of  confirmation  of  the  sale  of  said  Railroad  to  the  State 
of  North  Carolina,  as  the  purchaser,  and  the  said  written  contract 
filed  in  the  cause,  by  and  between  the  holders  and  owners  of  the 
mortgage  bonds,  and  the  State  of  North  Carolina,  acting  through 
her  commissioners  ;  the  exhibits  accompanying  and  annexed  to  the 
same,  and  the  same  being  debated  by  counsel  and  maturely  consid- 
ered by  the  Court,  it  is  thereupon  declared  b_y  the  Court : 

1st.  That  the  State   of  North    Carolina   is  the   purchaser  of  the 


iH.) 

"Western  North  Carolina  Railroad,  (Eastern  Division,)  and  all  its 
property  and  appurtenances,  of  any  name,  kind,  and  description, 
including  all  corporate  franchises,  rights,  and  interest,  whatever, 
from  its  Eastern  terminus,  in  the  city  of  Salisbury,  in  said  State  of 
North  Carolina,  towards  and  unto  the  Western  terminus  thereof,  in 
the  county  of  Buncombe,  in  the  same  State,  and  that  sai  1  State, 
through  her  commissioners  hereinbefore  mentioned,  hath  paid  to  the 
commissioners  to  make  sale,  the  sum  of  ten  thousand  dollars,  the 
cash  payment  required  in  the  original  decree,  in  part  payment  of  the 
purchase  money,  and  it  is  declared  by  the  Court  that  the  said  State 
of  North  Carolina  have  become,  and  is  the  purchaser,  at  eight  hun- 
dred and  tweuty-five  thousand  dollars,  and  now  owns  all  the  mort- 
gage bonds  provided  for  and  merged  in  the  former  decree  in  this 
cause,  amounting  in  the  aggregate  to  a  much  larger  sum  than  the 
purchase  money  aforesaid,  which  said  bonds  are  now  ready  and  ten- 
dered to  the  Court,  by  the  commissioners  representing  the  State,  to 
be  cancelled  or  marked  as  merge  J  in  the  decree,  as  may  be  directed. 
It  is  further  declared  by  this  Court,  chat  besi  les  the  mortgage 
bonds  provided  for  and  merged,  on  the  original  decree,  there  are 
five  hundred  other  bonds,  making  an  aggregate  of  five  hundred 
thousand  dollars,  but  the  same  were  never  completed  as  required  by 
law,  for  wan'u  of  the  approval  an  1  signature  of  the  late  Tod  R.  Cald- 
well, trustee,  and  were  therefore  invdid,  and  it  is  declared  by  the 
Court  that  said  incomplete  bonds  are  now  in  the  hands  of  Edward 
Mathews,  and  by  consent  of  said  Mathews,  are  to  be  surrendered  to 
the  said  commissioners  of  the  State  of  North  Carolina,  and  it  is  fur- 
ther declared  that  said  Edward  Mathews  hath  in  his  hands  certifi- 
cates for  about  eight  thousand  shares  in  the  capital  stock  of  the 
Western  North  Carolina  Railroad  Company,  and  is  the  owner  there 
of,  which  were  owned  by  Samuel  McD.  Tate,  and  by  him  assigned 
to  Hiram  Sibley,  and  assigned  by  said  Sibley  to  the  said  Edward 
Mathews,  and  it  is  agreed  with  written  contract  between  the  bond- 
holders and  the  State  of  North  Carolina  heretofore  referred  to,  as 
filed  in  the  cause,  that  the  said  certificate  or  certificates  for  eight 
thousand  shares  in  the  capital  ssock  of  the  Company,  are  to  be  as 
signed  by  said  Edward  Mathews  to  the  State  of  North  Carolina. 

It  is  further  declared  bj  the  Court  that  the  North  Carolina  Railroad 
Co.  claim?,  or  hts  claimed,- title  to  the  franchise  and  property  of  the 
Western  Division  of  the  Western  North  Carolina  Railroad  Co.,  un- 
der a  contract  made  the  31st  day  of  October,  1873,    by  and  between 


(66) 

the  Southern  Security  Company  of  the  first  part,  said  North  Caroli- 
na Railroad  Company  of  the  second  part,  the  East  Tennessee,  Vir 
ginia  &  Georgia  Railroad  Company  of  the  third  part,  and  W.  A. 
Smith  in  the  double  capacity  of  agent  and  trustee  of  the  first,  sec- 
ond and  third  parts,  and  the  fifth  part,  and  the  Court  doth  find  that 
the  said  Eist  Tennessee,  Virginia  &  Georgia  Radro  id  Company  have 
agreed  with  the  State  of  North  Carolina,  through  the  commissioners, 
to  cause  an  assignment  to  be  executed  by  the  said  North  Carolina 
Railroad  Company  unto  the  State  of  North  Carolina,  of  all  the  right, 
title,  claims  and  interest  of  every  kind  it  may  have-under  the  said 
contract  cf  the  31st  diy  of  October,  1873,  in  any  mortgage  bonds  of 
the  said  Western  North  Carolina  Railroad  Company,  -or  under  the 
decree  heretofore  enured  in  this  cause,  or  in  the  said  Western  North 
Cirolina  Riilroad.  and  other  property  of  the  siid  Western  North 
Carolina  Railroad  Company,  in  either  the  Eistern  or  Western  Divis- 
ion thereof,  or  both,  or  however  otherwise  derived  And  it  is  de- 
clared that  Rufus  Y.  MeAden 'hath  agreed  in  writing  with  the  State 
of  North  Carolina,  in  the  contract  filed  in  this  cause,  to  make  such 
good  and  sufficient  deed  or  deeds,  or  assurances  of  title  to  the  said 
State  of  North  Carolina  as  counsel  may  direct,  for  the  franchise  and 
property,  including  the  line  of  railway  of  the  Western  North  Caroli- 
na Railroad,  extending  from  the  city  of  Salisbury  to  Paint  Rock,  and 
in  said  dee  1  or  deeds  to  guarantee  the  title  to  the  same  to  the  ex 
tent  provided  and  set  forth  in  the  first  article  of  a  contract  made  the 
loth  day  of  May,  1872,  between  R.  Y.  MeAden,  Richard  T.  Wilson, 
Chas.  M.  McGrehee  and  the  East  Tennessee,  Virginia  and  Georgia 
Railroad,  which  contract,  or  a  copy  thereof,  is  annexed  to  the  writ- 
ten contract  made  with  the  State  of  North  Carolina,  and  filed 
amongst  the  records  of  this  cause  as  aforesaid. 

It  is  further  found  as  a  fact,  that  the  parties  in  their  written  agree- 
ment with  the  State  commissioners  aforesaid,  have  agreed  that  the 
net  earnings  of  the  Western  North  Carolina  Railroad,  in  the  hands 
of  Wm.  A.  Smith,  heretofore  appointed  Receiver,  up  to  the  1st  day 
of  May,  1875,  shall  be  liable,  first,  to  pay  ail  expenses  of  the  sale  of 
the  Road,  all  costs  of  the  cause  and  all  the  allowances  made,  which 
may  be  made  by  the  Court  in  the  course  thereof,  and  then  the  resi- 
due is  to  be  paid  out  to,  a  id  amongst  the  parties,  and  in  the  pro- 
portions mentioned  in  an  article  of  agreement  amongst  themselves, 
annexed  to  the  written  contract  made  as  aforesaid,  with  the  State  of 
North  Carolina,  and  as  to  the  earnings  of  said  Railroad,  on  and  since 


(67) 

the  said  first  day  of  May,  1875,  it  is  agreed  that  the  same  shall  be 
paid  over  to  the  State  of  North.  Carolina,  deducting  therefrom,  the 
expenses  incurred  incident  to  the  operating  of  the  Road,  since  said 
1st  day  of  May,  1875. 

It  is  agreed  by. the  parties,  anl  the  Court  doth  so  further  declare, 
that  on  the  confirmation  of  the' sale  by  the  Court,  the  sail  Railroad 
and  all  its  property,  may  be  turned  over  to  the  State  of  North  Car- 
olina, or  her  duly  authorized-agent  or  agents,  by  the  Receiver.  On 
the  foregoing  declaration  it;is  adjudged  and  decreed  by  the  Court, 
that  the  bonds  provided  for  and  merged  in  the  original  decree,  en- 
tered in  this  cause,  mayobe  surrendered  by  the  commissioners  of  the 
State  of  North  Carolina  to  Thomas  Ruffid  and  Thomas  B.  Keogh, 
•who  shall  thereupon,  by  written  or  printed  words  on  and  across  the 
face  of  each  bond  so  surrendered,  recite,  that  the  same  are  merged 
in  the  said  decree,  and  on  the  surrender  of  said  bonds,  and  the 
marking  of  the  same  as  merged,  as  aforesaid,  it  is  ordered,  adjudged 
and  decreed,  by  this  Court,  that  said  T.  Ruffin  and  T.  B.  Keogh 
shall  see  that  Curtis  H.  Brogden,  Grovernor,  and  R.  F.  Armfield, 
President  of  the  Senate,  and  James  L.  R  >binson,  Speaker  of  the 
House  of  Representatives,  representing  the  State  of  North  Carolina, 
or  some  one  or  more  of  them,  executes  a  receipt  on  the  docket  of 
the  Court  for  the  amount  of  the  purchase  money,  and  they  shall,  at 
the  same  time,  pay  over  to  the  said  commissioners  representing  the 
State,  and  include  the  same  in  said  receipt,  the  ten  thousand  dollars 
of  money  which  tliey  paid  down  at  the  time  of  the  sale,  and  these 
things  being  all  done,  it  is  ordered^  adjudged  and  decreed,  by  the 
Court,  that  Burgess  S.  Graither,  Thomas  Raffia  anl  Thomas  B. 
Keogh,  or  a  majority  of  them,  do  execute  a  deed  for  the  said  West- 
ern North  Carolina  Railroad,  (Eastern  Division,)  and  all  the  prop 
erty,  franchises,  rights  and  interest  of  every  name  and  kind,  unto 
the  said  State  of  Norch  Carolina,  and  deliver  to  the  said  commission- 
ers of  the  State. 

■<  It  is  further  adjudged  arid  decreed  by  the  Cjurt,  that  Edward 
Mathews  do  surrender  to  the  said  cjmmissioners  representing  the 
State  of  North  Carolina,  the  five  hundred  bonds  in  his  hands,  which 
were  incomplete,  making  an  aggregate  of  five  hundred  thousand 
dollars  ;  and  also,  that  he  assign  over  to  the  said  State,  and  deliver 
the  same  to  her  commissioners  aforesaid,  the  certificate  or  certificates 
he  now  holds  for  eight  hundred  thousand  shares  in  the  capital  stock 


(68) 

of  the  Western  North  Carolina  Railroad  Company,  the  certificate,  so 
required  to  be  assigned,  being  the  certificate  the  said  Edward  Ma- 
thews claims  as  assigned  to  him  by  Hiram  Sibley. 

It  is  further  ordered,  a  1  judged  and  decreed,  by  the  Court,  that 
the  E  ist  Tennessee,  Virginia  and  Georgia  Railroad  Company,  ac- 
cording to  their  undertaking  with  the  commissioners  of  the  State, 
do  cause  and  procure  the  North  Carolina  Riilroal  Company  to 
execute,  and  it  is  hereby  orderel  that  the  sail  North  Cirolina  Rail- 
road Company  do  execute  an  assignment  to  the  State  of  North  Car- 
olina of  any  and  all  rights,  title,  claim  and  interest  of  any  name  and 
kind,  it  may  have  in  the  Western  North  Cirolina  Railroad,  its  fix 
tnres,  appurtenances  and  franchises,  in  either  the  Eastern  or  West- 
ern Divisions  thereof,  or  in  both,  and  it  is  further  ordered  and  ad- 
judged, and  decreed,  by  the  Court,  thatRufus  Y.  MeAden  do  execute 
to  the  said  State  of  North  Carolina  such  deed  or  deeds  as  the  coun- 
sel of  the  State  may  direct,  for  the  line  of  Railway  of  the  Western 
North  Carolina  Railroad,  extending  from  the  city  of  Salisbury  to 
Paint  Rock,  and  all  the  property  and  franchises  belonging  thereto, 
and  that  he,  in  such  deed  or  deeds,  do  guarantee  the  title  to  the  said 
State  to  the  same  extent  as  is  provided  and  set  forth  in  the  1st  arti- 
cle of  a  contract  made  on  the  15th  day  of  May,  1872,  and  hereinbe 
fore  referred  to  as  annexed  to  the  written  contract  between  the 
bondholders  and  the  State  of  North  Carolina- 
It  is  further  ordered,  adjudged  and  decreed  by  the  Court  that  of 
the  earnings  of  the  Railroad  in  the  hands  of  Wm.  A.  Smith,  the 
Receiver,  up  to  the  ist  day  of  May,  1875,  ne'  tne  S£UC*  William  A. 
Smith,  shall  apply  so  much  thereof,  as  is  necessary  to  pay  all  the 
expenses  of  the  sale  of  the  Road,  all  the  costs  of  this  cause  to  be 
taxed  bv  the  Clerk  of  the  Court,  all  the  allowances  heretofore  or 
in  this  decree  made,  and  including  the  further  sum  of  one  hundred 
and  fifty  dollars,  each  to  Thomas  Kuffin,  and  Thomas  B.  Keogh, 
as  compensation  for  their  services  in  the  cancellation  of  the  bonds, 
and  also  including  the  costs  of  a  copy  which  is  hereby  directed  to 
be  made  bv  the  Clerk  of  the  written  contract  between  the  bond- 
holders, and  the  State  of  North  Carolina,  together  with  all  annex- 
ed exhibits  or  documents,  and  to  be  sent  to  the  Governor  of  the 
State,  and  the  residue  the  said  Smith  shall  pay  out  to,  and  amongst 
the  persons,  and  in  the  proportions  mentioned  in  an  Article  of 
agreement  executed  by  the  parties  concerned,  and  herein  before 
referred  to,  and  as  to  the  earnings  said  Railroad  on,  and  since  the  said 


(69) 

ist  day  of  May,  1875,  it  is  adjudged  by  the  Court  that  the  same  be 
paid  over  bv  said  Receiver  to  the  State  of  North  Carolina,  retain- 
ing therefrom  the  necessary  expenses  incurred  in  operating  the 
road  since  that  day. 

And  it  is  further  ordered,  adjudged,  and  decreed  by  the  Court 
that  as  soon  as  a  deed  is  executed,  and  delivered  to  the  State  of 
North  Carolina  as  herein  ordered  to  be  done,  the  Receiver,  William 
A.  Smith  do  surrender,  and  deliver  the  said  Western  North  Car- 
olina Railroad,  and  all  its  property  unto  such  agent  or  agents  of  the 
vState  as  may  be  certified  to  him  by  the  Attorney-General  of  the 
State,  to  be  proper  persons,  to  receive  the  same. 

And  the  cause  is  continued  for  the  carrying  out  the  referees' 
reports  as  to  the  State  of  accounts  between  the  Railroad,  and  Wm. 
A.  Smith,  the  Receiver,  and  when  said  reports  come  in  this  cause 
mav  then  be  brought  on  for  further  orders  and  directions  as  to  that 
or  any  other  matter  omitted  in  this  decree.         Robt.  P.  Dick, 

U.  S.  District  Judge. 

An  agreement  made  and  entered  into,  this  the  17th  day  of  April, 

1875,  by  and  between  the    East  Tennessee,   Virginia    &    Georgia 

Railroad  Company,  a  corporation  created  and  existing  by  the  laws 

of  Tennessee  and  Georgia,  acting  by    and    through    its  President 

Richard  T.  Wilson,  party  of  the  first  part,    Rufus  Y.  McAden,  of 

the  city  of  Charlotte,  North  Carolina,  of  the  second  part,  Edward 

Mathews,  of  the  city  and  State  of  New    York,    of  the  third  part,    Articles      of 
J  r        ■>    Agreem't  bes 

and  the  Governor  of  the  State  of  North  Carolina,  Robert  F.  Arm-   tween    Wil- 
son, )  Presid't, 
field,  and  Tames  L.  Robinson,    commissioners  appointed  under  an   and  state  of 

N*   C  9,rol  i  11a 

Act  of  the  General  Assembly  of  the  State  of  North  Carolina,  en- 
titled an  act  in  relation  to  the  Western  North  Carolina  Railroad 
ratified  the  13th  day  of  March,  1875,  parties  of  the  fourth  part; 

Whereas  at  the  April  Term,  1874,  of  this  Circuit  Court  of  the 
United  States  for  the  Western  District  of  North  Carolina,  at 
Greensboro,  in  a  certain  suit  therein  pending  wherein  Hiram  Sib- 
ley and  others,  plaintiffs,  and  the  Western  North  Carolina  Rail- 
road Company,  and  others,  defendants,  a  decree  of  foreclosure, 
and  sale  of  the  railroad,  franchises,  and  other  property  of  said  com- 
pany was  rendered  as  by  said  decree  duly  entered  in  said  Court 
will  appear,  and  whereas  the  said  parties  of  the  fourth  part  are 
authorized  by  the  said  act  of  the  General  Assembly  hereinbefore 
referred  to,  to  purchase  the  said  railroad,  and  all  the  property  ap- 
pertaining  thereto,  at  the  sale  to  be  made  under  said  decree,  and 


(70) 

any  claims  against  the  said  railroad  company  as  by  said  Act  will 
appear. 

And  whereas,  the  said  Rufus  Y.  McAden,  party  of  the  2nd 
part  is  holder  of  $183,000  of  bonds  (mortgage  bonds,)  which  are 
to  be  paid  out  of  the  proceeds  of  sale  as  provided  in  said  decree, 
and  also  is  the  owner  and  assignee  of  sundry  docketed  judgments 
against  the  company,  and  the  North  Carolina  Railroad  company, 
a  corporation  created  and  existing  under. the  Laws  of  North  Caro- 
lina, also  claims  an  interest  in  a  number  of  the  mortgage  bonds, 
secured  by  said  decree,  and  claims  to  control  the  said  decree,  and 
a  title  to  the  franchise  and  property  of  the  Western  Division  of  the 
said  Western  North  Carolina  Railroad  company,  under  a  contract 
made  31st  of  October,  1873,  by  the  Southern  Security  company;  of 
the  first  part;  said  North  Carolina  Railroad  company  of  the  second 
part,  the  said  the  East  Tennessee,  Virginia  &  Georgia  Railroad 
company  of  the  third,  the  said  R.  Y.  McAden,  of  the  fourth  part, 
and  W.  A.  Smiih  in  the  double  capacity  of  agent  and  trustee  of 
the  parties  of  the  first,  second  and  third  part,  of  the  fifth  part  as 
will  appear  by  said  contract,  a  copy  of  which  is  hereto  annexed, 
and  the  said  Edward  Mathews  is  the  holder,  and  claims  to  be  the 
owner  of  the  first  mortgage  bonds  mentioned  in  said  decree  as  held 
by  Hiram  Sibley,  that  is  to  say  five  hundred  and  thirty-seven 
thousand  dollars  of  said  bonds,  and  also  five  hundred  thousand 
dollars  of  said  bonds,  which  are  unsigned  by  the  trustees,  and  not 
included  in  said  decree,  under  a  contract  and  deed  of  assignment 
from  Hiram  Sibley  to  aid  Edward  Mathews,  bearing  date  the  27th 
of  October,  1874,  as  will  appear  by  said  contract. 

Now  it  is  agreed  by  the  said  party  of  the  first  part  for,  and  in 
consideration  of  the  acts  and  agreements  to  be  executed  by  the 
said  parties  of  the  fourth,  hereinafter  to  be  set  forth  and  enumerated 
to  cause  to  be  assigned  by  the  said  North  Carolina  Railroad  com- 
pany to  the  said  parties  of  the  fourth  part,  all  the  right,  title,  inter- 
est, and  claim  of  any  kind  which  the  said  North  Carolina  Railroad 
company  has,  or  claims  to,  or  in  said  mortgage  bonds,  or  said 
decree,  or  said  railroad,  or  other  property  of  the  Western  North 
Carolina  Railroad  company,  in  either  the  Eastern  or  Western  Divi- 
sion of  the  same,  or  in  both  divisions  thereof,  acquired  by  or  under, 
the  said  contract  between  the  said  Southern  Security  company, 
the  said  North  Carolina  Railroad  company,  and  others,  hereinbefore 
referred  to,  or  in  any  other  way,  and  the  said  Rufus  Y.  McAden, 


(70 

of  the  second  part,  for  the  consideration  aforesaid,  agrees  to  sur- 
render to  the  parties  of  the  fourth  part,  the  said  one  hundred  and 
eighty-three  bonds,  held  by  him  as  aforesaid,  and  also  thirty-six 
bonds,  referred  to,  in  said  decree  as  owned  by  the  First  National 
Bank  of  Charlotte,  or  to  deposit  said  bonds  in  the  Raleigh  Nation- 
al Bank  within  days  from  the  date  of  these  presents,  or  at 
some  other  place  that  may  be  agreed  on  so  that  the  said  bonds  may 
be  subject  to  the  order,  and  control  of  the  parties  of  the  fourth 
part,  and  the  said  party  qf  the  second  part  further  agrees  to  make 
such  good  and  sufficient  deed  or  deeds,  or  assurances  of  title  to  the 
said  parties  of  the  fourth  part  as  counsel  learned  in  the  law  may 
direct  to  the  franchises,  and  property  including  the  line  of  railway 
of  the  Western  North  Carolina  Railroad  company,  extending  from 
Salisbury  to  Paint  Rock,  gauranteeing  the  title  to  the  same  to  the 
same  extent  as  as  provided  in  the  first  Article. of  a  contract  made 
on  the  15th  day  of  May,  1872,  between  Rufus  Y.  McAden,  Rich'd 
T.  Wilson,  Charles  M.  McGehee,  and  the  East  Tennessee,  Vir- 
ginia &  Georgia  Railroad,  acting  through  its  President,  R.  T.  Wil- 
son, a  copy  oi  which  contract  is  hereto  annexed,  and  it  is  understood, 
and  agreed  that  the  said  first  Article  of  said  contract  forms  part  of 
this  agreement  as  fully  and  completely,  and  shall  be  as  binding  on 
said  McAden  as  if  said  Article  were  herein  repeated,  and  set  forth 
only  substituting  the  parties  of  the  fourth  part  for,  and  instead  of 
the  said  Richard  T.  Wilson  and  Charles  M.  McGehee,  so  that  the 
title  to  the  said  franchise,  railroad  and  property,  may  be  conveyed 
to  and  rest  in  the  parties  of  the  fourth  part 

And  the  said  Edward  Mathews,  party  of  the  third  pait,  agrees 
t )  surrender  to  the  said  parties  of  the  fourth  part,  the  said  five  hun- 
dred and  thirty-seven  thousand  dollars  of  first  mortgage  bonds 
secured  to  be  paid  in  said  decree  to  Hiram  Sibley,  and  twenty 
thousand  dollars  of  other  mortgage  bonds  secured  to  be  paid  in 
said  decree  to  Atkinson,  Proudfit, 

Lancaster  and  Mebane, 

and  five  hundred  thousand  dollars  of  mortgage  bonds,  which  are 
unsigned  by  the  trustees,  and  any  other  of  the  said  mortgage  bonds 
which  may  be  held  or  controled  by  him  or  to  deposit  said  bonds 
in  the  Raleigh  National  Bank    within  days    from  the 

date  of  these  presents,  or  at  some  other  place  which  may  be  agreed 
on  so  that  said  bonds  may  be  subject  to  the  order  and  control  of 
the  parties  of  the  fourth  part;  and  the  said  party  of  the  third    part 


(72) 

doth  agree  to  assign,  and  doth  hereby  assign,  transfer,  and  set  over 
to  the  said  pai-ties  of  the  fourth  part  all  the  right,  title,  interest, 
and  claim  of  any  kind  to  any  shares  of  the  capital  stock  in  the 
Western  North  Carolina  Railroad  company,  and  especially  all  his 
right,  title,  and  claim  to  an  assignment  of  a  certificate  of  some 
eight  thousand  shares  of  the  capital  stock  of  said  company  held 
by  various  stockholders,  and  by  them  assigned  to  Samuel  McD. 
Tate,  and  by  Tate  assigned  to  Hiram  Sibley,  on  or  about  the  12th 
day  of  April,  1870,  and  by  Sibley  assigned  to  the  party  of  the  third 
part,  and  the  said  party  of  the  third  part  agree  to  assign,  and  doth 
hereby  assign  and  ti'ansfer  to  the  parties  of  the  fourth  part  all  the 
right,  title,  and  interest  in  said  decree  or  in  the  monies  to  be  re- 
covered thereby,  or  thereunder,  and  in  the  mortgage  bonds  secured 
to  be  paid  by  said  decree  which  he  may  have  acquired  under  the 
contract  or  deed  of  assignment  from  Hiram  Sibley  hereinbefore 
referred  to;  a  copy  of  which  contract  or  deed  of  assignment  is 
hereto  annexed.  , 

And  the  said  parties  of  the  first,  second,  and  third  part  do  agree 
to  buy  up  and  get  the  control  of  in  proportion  to  their  respective 
interest  in  the  eight  hundred  and  fifty  bonds  hereinafter  ascertain- 
ed and  set  forth,  all  the  mortgage  bonds  included  in  said  decree, 
and  for  payment  of  which  provisions  is  made  in  said  decree,  and 
also  ten  bonds  heretofore  held  by  the  Tredegar  Company,  which 
are  not  now  held  and  controled  by  the  parties  of  the  second  part 
for  the  surrender  of  which  provisions  has  heretofore  been  made, 
and  deliver  the  said  bonds  to  the  said  parties  of  the  fourth  part  or 
deposit  the  same  in  the  Raleigh  National  Bank  or  in  some  other 
place  to  be  agreed  on  so  that  the  said  bonds  may  be  subject  to  the 
order  and  control  of  the  parties  of  the  fourth  part,  or  else  to  pay  to 
said  parties  of  the  fourth  part  as  soon  after  sale  as  practicable,  the 
pro  rato  of  the  proceeds  of  sale  to  be  made  under  said  decree,  which 
will  be  required  to  pay  to  the  holders  of  said  bonds,  and  to  which 
the  holders  will  be  entitled  under  said  decree,  and  they  do  further 
agree  to  assign,  and  they  do  hereby  assign  and  transfer  to  the 
pai'ty  of  the  fourth  part,  all  the  title,  interest,  and  control,  which 
they  or  either  of  them  have  to,  or  in  said  decree  and  in  the  mort- 
gage bonds  secured  to  be  paid  thereby,  and  all  the  interest  they 
may  have  in  the  proceeds  of  the  sale  to  be  made  under  said  decree. 

And  the  said  parties  of  the  fourth  part  the  commissioners  afore- 
said in  consideration  of  the  acts,  covenants,  and  agreements  to  be 


(  73 ) 

executed  and  performed  by  the  parties  of  the  first  part,  and  second, 
and  third  part  as  hereinbefore  set  forth,  do  covenant  and  agree  to, 
and  with  the  other  parties  hereto,  that  they  will  purchase  the  Wes- 
tern North  Carolina  Railroad  and  all  the  property  appertaining 
thereto  at  the  sale  thereof  made  under  said  decree  so  far  as  they 
are  empowered  under  the  said  act  of  the  General  Assembly  to  do, 
and  as  soon  as  said  sale  shall  have  been  confirmed  by  the  Court, 
and  the  said  commissioner  as  purchaser,  shall  have  been  let  into  the 
possession  of  said  premises  as  provided  for  in  said  decree,  the  said 
parties  of  the  fourth  part  will  forthwith  issue  the  said  mortgage 
bonds  in  the  name  of  the  Western  North  Carolina  Railroad  com- 
pany as  authorized  by  said  Acts  to  the  amount  of  eight  hundred 
and  fifty  thousand  dollars,  that  is  to  say  eight  hundred  and  fifty 
bonds  of  one  thousand  dollars  each  with  coupons  payable  in  May 
and  November  the  first;  coupons  shall  be  due  and  payable  on  the 
first  day  of  November,  iSj^,  and  to  secure  the  payment  of  said 
bonds  and  interest,  shall  thereupon  without  delay  execute  a  mort- 
gage deed  with  power  of  sale  to  such  trustee  or  trustees  as  may  be 
agreed  on  conveying  the  railroad,  franchise  and  other  property  of 
said  company,  and  as  soon  as  such  deed  shall  have  been  executed, 
will  cause  the  same  to  be  recorded  in  the  Register's  office  of  Ro- 
wan county,  and  the  said  party  of  the  fourth  part  as  soon  as  said 
bonds  shall  be  executed  will  deliver  to  the  said  parties  of  the  first, 
second,  and  third  parts,  the  said  eight  hundred  and  fifty  bonds  to 
be  divided  among  said  parties  in  the  proportion  agreed  upon  in  the 
contract  this  day  made  between  the  said  parties  of  the  first,  second 
and  third  part  which  said  contract  is  hereto  attached  as  a  part  of 
this  agreement.  It  is  further  agreed  that  any  money  in  the  hands 
of  the  Receiver  or  belonging  to  the  company  up  to  the  1st  day  of 
May,  1875,  after  deducting  all  expenses  of  sale,  and  all  costs,  and 
allowances,  which  may  be  made  by  the  Court,  shall  be  divided  in 
the  same  proportion,  and  among  the  same  parties  as  expressed 
above  in  regard  to  the  bonds.  The  said  bonds  and  money  being 
in  payment  and  satisfaction  of  the  liens,  bonds  and  other  claims  of 
the  parties  of  the  first,  second,  and  third  parts  hereinbefore  set  forth. 
That  if  said  parties  of  the  fourth  part  shall  purchase  said  rail- 
road, they  shall  take  immediate  steps  so  far  as  authorized  by  said 
act  for  the  appointment  of  the  three  commissioners  named  in  said 
act,  to  manage  the  affairs  and  will  proceed  as  rapidly  as  practic- 
able to  the  construction  and  completion  of  said  railroad. 


(74) 

And  it  is  expressly  understood  and  agreed  that  if  the  said  parties 
of  the  fourth  part  are  prevented  from  purchasing,  the  said  parties 
of  the  first,  second,  and  third  part,  may  purchase  the  same,  and 
shall  by  such  purchase  acquire  an  interest  in  said  railroad,  and 
property  in  the  same  proportion  as  they  will  have  in  the  said  eight 
hundred  and  fifty  bonds  as  hereinbefore  ascertained,  and  set  forth, 
and  if  any  other  person  shall  purchase,  then  the  said  parties  of  the 
first,  second,  and  third  part  shall  have  the  same  interest,  and  in 
the  same  proportion  in  the  proceeds  of  sale. 

In  case  the  parties  of  the  first,  second,  and  third  part  or  any  ot 
them  shall  purchase,  as  aforesaid  such  purchaser  shall  on  applica- 
tion of  the  said  parties  of  the  fourth  part,  or  other  commissioners 
who  may  by  law  be  appointed  in  their  place,  with  authority  to 
Carry  out  this  agreement,  assign  and  transfer  to  said  party  of  the 
fourth  part  or  such  other  commissioners  as  the  case,  may  be  the 
Said  railroad  and  other  property  upon  the  same  considerations,  and 
for  the  purposes  hereinbefore  set  out. 

And  in  the  event  that  the  parties  of  the  fourth  part  shall  not  be- 
come the  purchasers  of  said  railroad,  and  property,  and  shall  not 
have  the  same  assigned  and  transferred  to  them  by  the  said  parties 
of  the  first,  second,  and  third  part  as  hereinbefore  provided,  then 
and  in  that  event  the  said  parties  of  the  fourth  part  shall  re-convey 
and  assign  to  the  parties  of  the  first,  second,  and  third  part  all  the 
rights,  interest  or  claims  of  aivy  kind  which  the  parties  of  the  fourth 
part  may  acquire,  or  become  entitled  to  under  this  agreement,  and 
the  assignment  made  to  them  by  the  North  Carolina  Railroad 
company. 

And  in  the  event  the  said  parties  of  the  first,  second,  and  third 
parts  shall  become  the  purchasers  as  aforesaid,  then  the  parties 
aforesaid  shall  be  entitled  to  use  the  bonds  and  other  securities  to 
enable  them  to  make  such  purchase. 

In  witness  whereof  the  said  parties  hereinto  set  their  hands  this 
the  17th  day  of  April,  A.  D.,  1S75. 

The  East  Texx.,  Virginia  &  Ga.  R.  R.  Co., 

by  R.  T.  Wilson,  President, 
R.  Y.  McAden, 
Edward  Mathews, 
C.  H.  Brogden,  Governor  of  N.  C, 
R.  F.  Armfield, 
J.  L.  Robinson. 
In  presence  of  W.  N.  H.  Smith. 


(75) 

Articles  of  agreement  entered  into,  this  the  seventeenth  of  April 
1875,  between  Edward  Mathews,  of  the  State  of  New  York,  as 
party  of  the  first  part,  the  East  Tennessee,  Virginia  and  Georgia 
Railroad  Company,  a  corporation  created  and  existing  under  the 
laws  of  the  States  of  Tennessee  and  Georgia,  as  party  of  second 
part,  and  Rufus  Y.  McAden,  of  the  State  of  North  Carolina,  as 
a  party  of  the  third  part,  witnesseth  : 
Eirst.     The  parties  aforesaid  have  this  day  entered  into  a  contract  A*r  t  i  c les  bf 

L  ^  agreeme  i  be- 

with  the  Governor  of  the  State  of  North  Carolina,  Robt.  F.  Armfield   tween  Ediv'd 

Mathews     t: 

and  James  L.  Robinson,  in  their  official  capacity  as  a  board  of  com-  ah.  and  >u- 

A  den . 

missioners,  created  under  an  act  of  the  Legislature  of  the  State  of 
North  Carolina,  entitled,  "an  Act  in  relation  to  the  Western  North 
Carolina  Railroad,  ratified  on  the  (13th)  thirteenth  day  of  March, 
1875,"  by  which  they  have  respectively  sold  to  said  commissioners 
all  of  the  securities  in  the  Western  North  Carolina  Railroad  which 
they  have  heretofore  acquired,  and  for  a  better  understanding  of 
said  contract  with  the  commissioners  aforesaid,  reference  is  hereby 
made  to  the  same,  a  copy  of  which  is  hereto  attached  and  made  a 
part  of  this  contract. 

Second.  Of  the  bonds  to  be  received  of  the  commissioners  afore- 
said, under  the  annexed  contract,  and  of  the  money  to  be  received 
from  the  Receiver,  or  the  Court,  in  the  foreclosure  proceedings  re- 
ferred to  in  said  contract,  there  shall  be  applied  sufficient  to  pay 
what  may  be  required  to  satisfy  the  claim  of  the  North  Carolina  Rail- 
road Company,  as  per  agreement  made  with  it  for  the  purchase  of 
such  bouds  as  it  holds  against  the  Western  North  Carolina  Railroad 
Company,  and  also,  whatever  may  be  allowed  either  by  purchase  or 
otherwise,  to  Norris  &  Sons,  of  Philadelphia,  for  their  bonds  on  the 
Western  North  Carolina  Railroad  Company.  Also,  what  has  been 
paid  by  R.  Y.  McAden  for  the  bonds  on  the  Western  North  Carolina 
Railroad  Company,  which  he  has  purchased  of  the  Tredegar  Compa- 
ny, at  Richmond,  Va.,  to  wit :  Twenty  five  cents  on  the  dollar,  and 
interest  on  same  from  date  of  purchase. 

Third.     Also  one  bond  in  hands  of  Henry  Clews. 

The  remainder  of  the  bonds  and  money  shall  be  pro  rated  among 
tihe  parties  to  this  agreement  in  proportion  to  the  debts  due  them, 
as' specified  in  this  agreement.     To-wit : 

Edward  Mathews  the  sum  of  two  hundred   and   eighty-six 

thousand  six  hundred  and  sixty  dollars.     The  East  Tennessee,  Vir- 


(76) 
» 
ginia  and  Georgia   Railroad  Company  two   hundred  and  forty- one 
thousand  nine    hundred  and   forty  dollars.     E.   Y.  McAden   three 
hundred  and  forty  two    thousand   dollars.     The  above  debts   to  be 
discharged  by  the  bonds  and  money  aforesaid  in  the  propor 

tions,  as  the  said  debts  stand  to  the  amount  of  bonds  and  money. 

The  bonds  and  money  shall  be  received  by  the  respective  parties 
or  their  agents,  in  the  above  proportions  from  the  commissioners 
and  the  Court. 

Fourth.  In  case  the  commissioners  fail  to  consummate  the  pur- 
chase and  payment  for  the  Road  aforesaid,  as  contemplated  by  the 
contract  with  them  ;  then,  and  in  that  caseT  it  shall  be  purchased  by 
the  parties  in  this  agreement,  and  the  securities  mentioned  in  the 
contract  with  the  commissioners  shall  be  used  in  paying  for  same, 
and  the  property  shall  be  owned  by  the  parties  to  this  agreement  in 
the  same  proportion  as  the  debts  aforesaid  shall  stand  to  the  whole 
property.  If  from  any  cause  the  property  shall  be  purchased  by 
parties  other  than  these  mentioned  in  this  contract,  then  the  money 
arising  from  such  purchase  shall  be  divided  in  proportions  as  above 
described. 

Edward  Mathews, 
The  East  Tenn.,  Virginia  &  Georgia  Railroad  Co., 
(By  R.  T.  Wilson,   President.) 

AriJesbetw'n.  R-  Y.  McAden. 

c. luthern  Ray 

Sec'y  Co..  Mc-     These  articles  of  agreement  made  and  entered  into  by  the  South- 
Aden,  Wilson  °  J 
&  McGehee.   ern  Railway  Security  Company,  a  corporation  created   and  existing 

under  the  laws  of  the  State  of  Pennsylvania,  as  party  of  the  first  part, 
R.  Y.  McAden,  of  Charlotte,  North  Carolina,  as  party  of  second  part, 
Richard  T.  Wilson,  of  New  York,  C.  M.  McGehee,  of  Knoxviile, 
Tennessee,  as  party  of  the  third  part,  the  East  Tennessee,  Virginia 
and  Georgia  Railroad  Company,  a  corporation  created  and  existing 
by  virtue  of  the  laws  of  the  States  of  Tennessee  and  Georgia,  as  par- 
ty of  the  fourth  part,  witness  : 

Whereas,  The  party  of  the  third  part,  at  the  instance  and  as  the 
representative  of  the  party  of  the  first  part,  and  for  benefits  to  result 
to  the  party  of  the  fourth  part,  entered  into  a  contract  with  the  party 
of  the  second  part,  bearing  date  of  the  15th  May,  1872,  a  copy  of 
which  contract  is  hereto  annexed,  and  to  which  reference  is  made 
for  the  purchase  and  procurement  of  title  to  both  divisions  of  the 
Western  North  Carolina  Railroad,  extending  from^  Salisbury,  North 


(77) 

Carolina,  to  a  point  on  the  line  between  the  States  of  North  Carolina 
and  Tennessee,  at,  or  near  Paint  Rock  ;   and, 

Whereas,  On  the  7th  day  of  November,  1872,  the  party  of  the 
fourth  part  and  Richard  T.  Wilson  being  the  same  person  named,  as 
party  of  the  third  part  part,  and  Hiram  Sibley,  of  the  State  of  New 
York,  b}7  and  with  the  knowledge  and  consent  of  the  party  of  the 
second  part,  and  at  the  instance  of  the  party  of  che  first  part,  entered 
into  a  contract  for  the  purchase  of  certain  stocks  in,  and  bonds  on, 
the  Western  North  Carolina  Railroad  Company,  a  copy  of  which 
contract  is  hereunto  attached,  and  reference  is  hereby  made  to  it  for 
better  understanding  of  the  same  ; 

And  whereas,  It  is  now  deemed  to  be  for  the  interest  of  all  the 
parties  to  the  contracts  before  referred  to,  to  substitute  the  party  of 
the  first  part,  instead  of,  and  in  the  place  of  the  party  of  the  third 
part,  to  all  intents  and  purposes,  and  as  fully  as  though  the  party  of 
the  first  part  had  have  been  the  original  contracting  party  in  the 
aforesaid  contracts,  both  of  which  were  made  at  the  instance  of  the 
party  of  the  first  part,  and  for  its  benefits  ;'  and  this  fact  was  so 
stated  at  the  time  the  said  contracts  were  made,  and  was  so  under- 
stood by  the  parties  hereto.     Now,  therefore,  it  is  agreed  as  follows  : 

1st.  This  contract  shall  be  deemed  as  being  legally  executed  where 
it  is  properly  signed  by  the  first,  second  and  third  parties  herein 
named,  so  far  as  it  applies  to  them  collectively  and  respectively,  and 
when  the  same  is  legally  executed  by  the  party  of  the  fourth  part,  it 
shall  take  effect  as  to  wit : 

2nd.  It  is  agreed  by  the  parties  hereto,  that  the  party  of  the 
first  part  is  hereby  substituted  in  the  same  place,  and  stead  of  the 
party  of  the  third  part,  that  is  to  say,  in  the  room  place,  and  stead 
of  Richard  T.  Wilson  and  C.  M.  McGehee  in  the  contract  bear- 
ing date  as  aforesaid,  between  themselves  and  the  aforesaid  Rufus 
Y.  McAden,  and  the  aforesaid  East  Tennessee,  Virginia  &  Geor- 
gia Railroad  company,  and  the  aforesaid  Rufus  Y.  McAden,  (and 
the- aforesaid  East  Tennessee,  Virginia  &  Georgia  Railroad  com- 
pany,) hereby  fully,  accept  the  party  of  the  first  part,  and  hereby 
release  and  fully  discharge  the  aforesaid  Richard  T.  Wilson  and 
C.  M.  McGehee  irom  all  connection  with  and  responsibility,  and 
liability  for,  or,  in  any  manner  growing  out  of  the  contract  afore- 
said, it  being  understood  and  argred  that  the  party  of  the  first  part 
hereby  assumes  all  risk,  responsibility,  and  liability  as  fully,  and 
to  all  intents  and  purposes  as  if  the  name  of  the  party  of  the   first 


(78) 

part  had  have  been  originally  used  in  the  place,  and  stead  of  the 
aforesaid  R.  T.  Wilson  and  C.  M.  McGehee  in  the  contract  with 
R.  Y.  McAden,  and  in  the  place  and  stead  of  the  aforesaid  R.  T. 
Wilson  in  the  contract  with  Hiram  Sibley,,  and  the  party  of  the 
second  part  hereby  accepts  the  substitution  as  aforesaid,  and  grants 
unto  the  said  R.  T.  Wilson  and  C.  M.  McGehee  a  full  and  com- 
plete release  as  herein  stated. 

3rd.  It  is  further  agreed,  and  the  party  of  the  first  part  hereby 
assumes  the  place  and  stead  of  the  aforesaid  R.  T.  Wdson  in  the 
contract  with  Hiram  Siblev,  of  New  York,  the  East  Tennessee, 
Virginia  &  Georgia  Railroad  company  as  fullv  as  if  the  party  of 
the  first  part  had  have  been  an  original  party  to  it  in  place  of  the 
said  R.  T.  Wilson.  - 

•  4th.  It  is  further  agreed  that  the  party  of  the  first  part  shall 
have  the  power  and  right  to  create  such  further  liens  upon  the 
property  and  franchises  of  the  Western  North  CaroLna  Railroad 
company  as  soon  as  it  may  be  in  the  power  of  the  party  of  the  first 
part  to  give  liens  on  the  Western  North  Carolina  Railroad  by  rea- 
son of  the  party  of  the  first  part  having  become  the  purchaser  or 
owner  of  the  Western  North  Carolina  Railroad  or,  by  reason  of  the 
party  of  the  first  part  being  otherwise  empowered  to  create  liens 
upon  the  Western  North  Carolina  Railroad  in  order  to  raise  such 
money  as  the  party  of  the  first  part  shall  from  time  to  time  deem 
it  to  be  the  interest  of  the  parties  hereto,  to  expend  in  order  to  per- 
fect the  undisputed  title  to,  and  possession  of  the  Western  North 
Carolina  Railroad,  and  to  discharge  all  claims  against  the  same. 
The  party  of  the  first  part  shall  also  have  the  power  to  promise, 
and  when  created,  to  give  sucn  amount,  of  common  stock  in  the 
new  company  which  it  is  proposed  to  organize,  as  may  from  time 
to  time  be  by  the  party  of  the  fir  ,t  part  deemed  advisable,  in  order 
to  hasten  the  early  possession  of  and  undisputed  title  to  the  Wes- 
tern North  Carolina  Railroad,  and  to  discharge  all  claims  against 
the  same,  and  the  party  of  the  first  part  agrees  to  hold  the  Western 
North  Carolina  Railroad  when  it  shall  come  into  possession  of  it, 
so  far  as  it  may  have  the  right  to  hold  it,  first  subject  to  all  the 
liens  previously  created  by,  or  as  contemplated  in  the  aforesaid 
contracts,  and  then  to  such  liens  as  may  hereafter  be  created,  and 
secondly  to  the  reorganization  of  the  new  company. 

5th.     Although  in  the  original  contract  with  the  aforesaid  R.  Y. 
McAden,  and  the  aforesaid  C.  M.  McGehee,  and  R.  T  Wilson,  and 


(79) 

the  East  Tennessee,  Virginia  and  Georgia  Railroad  Co.,  it  is  stated 
that  the  said  C.  M.  McGehee  and  R  T.  Wilson  were  the  owners  of 
the  Cincinnati,  Cumberland  Gap,  and  Charleston  Railroad,  yet  at 
the  time  it  was  known  to  the  parties  that  the  East  Tennessee,  Vir- 
ginia &  Georgia  Railroad  company  was  the  real  owner  of  said  road, 
and  that  it  only  stood  in  the  name  of  the  said  R.  T.  Wilson  arid  C. 
M.  McGehee  as  trustees,  and  it  is  hereby  construed  that  all  the 
obligation  resting  on  the  parties  to  this  agreement  or  the  afore- 
said contract  respecting  that  road  is  to  hold  it,  and  put  it  into  the 
new  organization  on  the  payment  of  the  cost  of  said  road  and  in- 
terest on  the  amount  paid  for  it  at  the  rate  of  seven  per  cent,  per 
annum. 

6th.  The  party  of  the  first  part  is  to  re-organize  the  consolida- 
ted road  provided  for  in  said  contract  under  a  new  company  as 
soon  as  it  mav  be  practicable  to  do  so,  but  is  not  to  be  held  for  any 
individual,  or  personal  liability  to  the  party  of  the  second  part,  it 
being  the  true  intent  and  meaning  of  this  and  the  contract  pre- 
viously referred  to,  that  the  property  alone  is  to  provide  the  means 
to  repay  past  outlays,  and  all  future  liabilities,  and  that  he  is  to 
look  .to  the  property  alone  for  the  means  to  make  all  the  payments, 
and  to  discharge  all  the  obligations  incurred,  with,  or  intended  by 
the  said  contract. 

7th.  And  it  is  hereby  further  agreed  that  the  re-organized  rail- 
road contemplated  by  the  said  contracts  may  be  mortgaged  up  to 
the  rate  of  $25,000  per  mile,  provided,  however,  that  if  the  amount 
for  which  the  same  shall  be  mortgaged  shall  exceed  the  $18,000  of 
seven  per  cent,  or  $20,000  of  six  per  cent,  bonds  provided  in  the 
said  contract  with  the  said  party  of  the  second  part,  the  amount  of 
bonds  he,  by  the  terms  of  such  contract  is  to  receive,  shall  be  in- 
creased in  proportion  to  increase  of  mortgage. 

8th.  And  it  is  further  agreed  that  the  said  contract  be,  and  the 
same  hereby  is,  so  far  modified  as  that  the  party  of  the  second  part 
shall  not  be  compelled  to  deliver  to  the  party  of  the  first  part  any 
other  bonds  of  the  said  Western  North  Carolina  Railroad  Company 
than  the  $219,000  provided  to  be  transferred  by  him  to  the  party 
of  the  second  part,  that  is  to  say,  he  shall  be  compelled  to  transfer 
that  amount,  but  not  to  purchase  bonds  beyond  that  amount,  and 
instead,  the  party  of  the  first  part  may  purchase,  compromise,  or 
settle  for  all  such  bonds  as  shall  not  so  be  transferred  by  the  party 


Probate. 


(SO) 

of  the  second  part,  and  as  they  shall  not  receive  under  the  said  con- 
tract with  the  said  Hiram    Sibley,  and  the  necessary  means  shall  be 
furnished  by  him  as  permitted  in  the  fourth  article  hereof. 
Subscribed  the  23d  day  of  June,  1873. 

Southern  Railway  Security  Company, 
(by  James  Rodswell,  President.) 
Attest :     Charles  Paul  Mackie,  Secretary. 

E.  T.  Wilson, 
C  M.  McGhee, 
R.  T.  Wilson, 
As  party  in  contract  with  Hiram  Sibley,  hereby  transferred. 

R.  Y.  McAden. 

State,  City  and   County  of  Ne-aj   York  : — .SS. 

Be  it  remembered  that,  on  the  27th  day  of"  June,  A.  D.  1S73,  before  me  Chas. 
Nettleton.  a  Commissioner  of  the  State  of  North  Carolina  for  the  State  of 
New  York,  residing  in  the  said  city  of  New  York,  personally  appeared  James 
Roosevelt,  the  President  of  the  Southern  Railway  Security  Company,  to  me 
personally  known  to  be  such,  who  being  by  me  duly  sworn  did  depose  and  say, 
that  he  resided  in  New  York  city,  that  he  was  the  President  of  the  said  Com- 
pany, that  he  knows  the  corporate  seal  of  said  Company,  that  the  seal  affixed 
to  the  foregoing  instrument  is  such  corporate  seal,  that  it  was  so  affixed  thereto 
by  order  of  the  Board  of  Directors  of  said  Company,  and  that  he  signed  his 
name  thereto  by  the  like  order  as  the  President  of  said  Company  ;  and  he  fur- 
ther acknowledged  the  same  as  ais  own  free  act  and  deed,  as  well  as  the  free 
act  and  deed  of  the  said  The  Southern  Railway  Security  Company. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  affixed  my  official  seal 
this  27th  day  of  June,  A.  D.  1873. 

[Seal.]  Chas.  Nettleton, 

Commmissioner  for  North  Carolina  in  New  York, 

117  Broadway,  N.  Y.  City. 

State,   City  and  County  of  Ne-w  York  : — .S.S. 

Be  it  remembered  that,  on  this  27th  day  of  June,  A.  D.  1873,  before  me,  Chas. 
Nettleton,  a  Commissioner  of  the  State  of  Pennsylvania  for  the  State  of  New 
York,  residing  in  said  city  of  New  York,  personally  appeared  James  Roose- 
velt, the  President  of  the  Southern  Railway  Security  Company,  to  me  perso- 
nally known  to  be  such,  who  being  by  me  duly  sworn,  did  depose  and  say  that 
he  resided  in  New  York  city,  that  he  was  the  President  of  said  Company  ;  that 
he  knows  the  corporate  seal  of  said  Company,  that  the  seal  affixed  to  the  fore- 
going instrument  is  such  corporate  seal,  that  it  was  so  affixed  thereto  by  order 
of  the  Board  of  Directors  of  said  Company,  and  that  he  signed  his  name  there- 
to by  the  like  order  as  President  of  said  Company  ;  and  he  further  acknowl- 
edged the  same  as  his  own  free  act  and  deed  as  well  as  the  free  act  and  deed  of 
the  said  the  Southern  Railway  Security  Company,  and  desired  that  the  same 
might  be  received  as  such. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  affixed  my  official  seal 
this  27th  day  of  June,  A.  D.,  1873. 

[Seal.]  Charles  Nettleton, 

Commissioner  for  Pennsylvania  in  New  York, 
117  Broadway,  N.  Y.  City. 


(Si) 


Stale,  Vity  and  Coanty  of  New   Tork  :—SS. 


Be  it  remembered,  that  on  this  27th  day  of  June,  A.  D.  1873, 
Chas.  Nettleton,  Commissioner  oi  the  State  of  Tennessee  for  the 
New  York,  residing  ia  said  city  of  New  York,  personally  appeared  James 
Roosevelt,  the  President  of  the  Southern  Railway  Security  Company,  to  me 
personally  known  to  be  such,  who  being  by  me  duly  sworn,  did  depose  and  say 
that  he  resided  in  New  York  C'ty.  that  he  was  the  President  of  the  said  Com- 
pany, that  he  knows  the  corporate  seal  of  said  Company,  that  the  seal  affixed 
to  the  foregoing  instrument  is  such  corporate  seal,  that  it  was  so  affixed  thereto 
by  order  of  the  Board  of  Directors  of  said  Company,  and  that  he  signed  his 
name  thereto  by  the  like  order  as  the  Pres'dent  of  said  Company.  And  he  fur- 
ther acknowledged  the  same  to  be  his  own  free  act  and  deed,  as  well  as  the  free 
act  and  deed  of  the  said  Company  for  the  purposes  therein  contained. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  affixed  my  official  seal, 
this  27th  day  of  June,  A.  D.  1S73. 

[Seal.]  Charles  Nettleton, 

Commissioner  for  Tennessee  in  New  York, 

117  Broadway,  New  York  City. 


before  meprobate  of 
State  ot    Agreement. 


These  articles  of  agreement  witness  that ; 

Whereas,    Richard  T.  Wilson,  of  the  City,  County   and  State   of 
New  York,  and  Charles  M.  McGhee,  of  Knoxville,    Tennessee,   have 


Article  of 
Agreem't  be- 
tween R.    Y. 

heretofore  purchased  from  Rufus  Y.  McAden,    of  '  Charlotte,    North   Me  \ den  and 

to   the  Western  North 


Carolina,  his  title,  interest  and  claim  in  and 
Carolina  Railroad,  and  the  Western  Division  of  the  Western  North 
Carolina  Railroad,  and  for  the  better  understanding  of  that  transac- 
tion reference  is  hereby  made  to  the  contract  of  purchase  made  and 
existing  by  and  between  the  aforesaid  parties. 

And  whereas,  Hiram  Sibley,  of  the  State  of  New  York,  is  the 
holder  of  the  first  mortgage  bonds  of  the  Western  North  Carolina 
Railroad  Co.,  say  in  amount,  one  million  and  fifty  seven  thousand 
dollars,  wrjich  carry  the  unpaid  coupons.  And,  also,  he  is  the  hold- 
er of  a  certificate  of  the  secretary  of  the  Western  North  Carolina 
Railroad  Company  as  to  the  ownership  of  eight  thousand  shares  of 
the  stock  of  the  said  Company,  and  whereas  the  said  Hi- 
ram Sibley,  has  heretofore  instituted  suit  in  the  United 
States  Circuit  Court  of  North  Carolina,  for  the  purpose  of 
foreclosing  the  mortgage  lien  made  on  said  property  to  secure  the 
payment  of  the  bonds  held  by  the  said  Sibley,  which  judicial  pro- 
ceedings are  now  pending ; 

And  whereas,  It  is  contemplated,  after  the  foreclosure,  sale  and 
purchase  of  the  Western  North  Carolina  Railroad,  to  consolidate  it 
with  other  roads,  by  which  a  continuous  line  will  be  had  from  Salis- 
bury, North  Carolina,  via  Asheville,  to  Morristown,  in  the  State  of 
Tennessee,  which,  when  completed,  will,  it  is  believed,  become  a  val- 


Hiram 
ley. 


Sib- 


(82) 

liable  feeder  to  the  East  Tennessee,  Virginia  and  Georgia  Railroad 
Co.  And  in  consideration  of  the  advantages  thus  to  be  derived,  the 
said  East  Tennessee,  Virginia  and  Georgia  Railroad  Company,  a  cor- 
poration created  and  existing  by  virtue  of  the  laws  of  the  States  of 
Tennessee  and  Georgia,  through  its  President  and  the  aforesaid 
Hiram  Sibley  and  Richard  T.  Wilson,  severally  agree  with  each 
other  in  manner  following,  to-wit : 

For  purposes  of  convenience  the  said  Hiram  Sibley  is  herein  de- 
signated as  the  party  of  the  first  part,  and  the  said  Richard  T.  Wil- 
son as  party  of  the  second  part,  and  the  said  the  East  Tennessee, 
Virginia  and  Georgia  Railroad  Co.  as  the  party  of  the  third  part. 

1st.  The  party  of  the  first  part  has  this  day  sold  to  the  party  of 
the  second  part  the  aforesaid  bonds  on,  and  the  certificate  as  to  the 
ownership  of,  the  eight  thousand  shares  of  stock  in  the  Western 
North  Carolina  Railroad  Co.  for  the  sum  of  three  hundred  and  sev- 
enty thousand  dollars,  on  which  a  payment  of  one  hundred  thousand 
dodars  has  been  made,  and  receipt  of  which  is  hereby  acknowledged. 

2nd.  The  party  of  the  second  part  is  to  be  subrogated  if  at  any 
time  he  shall  so  elect,  to  the  judicial  position  of  the  party  of  the 
first  part  in  the  suit  now  pending  for  the  purpose  of  foreclosing  the 
mortgage  on  the  said  Western  North  Carolina  Railroad  ;  and  the 
party  of  the  second  part  is  to  conduct  the  legal  proceedings  with 
reasonable  diligence,  and  is  to  pay  the  legal  expenses,  including  the 
attorney  fees  of  the  party  of  the  first  part,  as  per  his  contract  with 
Ward,  Jones  and  Whitehead,  the  attorneys. 

3rd.  The  party  of  the  second  part  expressly  undertakes,  cove 
nants  and  agrees  to,  and  with  the  party  of  the  first  part,  that  he  will 
be  present  at  the  sale  under  foreclosure  as  aforesaid,  and  that  at 
said  sale  he  will  become  purchaser  thereof,  or  in  the  alternative, 
should  others  compete  at  the  sale,  will  bid  for  the  premises  such  an 
amount  as  will  realize  to  the  party  of  the  first  part  upon  the  securi- 
ties sold  by  him,  and  to  which  this  agreement  relates,  a  net  sum 
equal  to  the  aforesaid  amount  of  two  hundred  and  seventy  thousand 
dollars,  and  immediately  after  the  completion  of  said  title  in  the 
party  of  the  second  part,  and  when  possession  is  obtained  by  him 
of  the  said  Western  North  Carolina  Railroad  franchises  and  proper- 
ty, then  interest  is  to  begin  at  the  rate  of  three  and  one  half  per 
cent,  per  annum,  upon  said  deferred  payments  of  two  hundred  and 
seventy  thousand  dollars. 

4th.     After  the  title  to  the  Western  North  Carolina  Railroad  is 


(S3) 

procured  by  a  foreclosure,  and  sale  as  aforesaid,  it  is  contemplated 
to  consolidate  that  road  with  others,  and  issue  bonds,  principal 
and  interest  payable  in  gold  at  the  rate  of  twenty  thousand  dollars 
per  mile  if  the  rate  of  interest  should  be  fixed  at  six  per  cent,  per 
annum,  or  at  the  rate  of  eighteen  thousand  dollars  per  mile  if  the 
rate  of  interest  shall  be  fixed  at  seven  per  cent,  per  annum,  and 
secure  the  principal  and  interest  of  said  bonds  so  issued  by  a  first 
mortgage  lien  on  the  consolidated  line  of  road. 

c;th.  It  is  intended  to  sell  the  bonds  to  be  issued  as  aforesaid, 
and  applv  as  the  same  are  sold,  sufficient  of  their  first  proceeds  to 
the  payment  and  discharge  of  the  deferred  payment  and  interest 
thereon,  which  will  be  owing  the  party  of  the  first  part.  And 
when  the  aforesaid  Western  North  Carolina  Railroad  is  sold  and 
purchased  as  now  contemplated  by  the  party  of  the  second  part, 
the  purchase  shall  be  made  with  the  understanding,  and  upon  the 
condition  that  the  entire  property,  franchises,  and  income  shall  be 
held  in  trust  by  the  party  of  the  second  part,  first,  to  secure  the 
deferred  payment  owing  to  the  party  of  the  first  part,  and  interest 
thereon  at  the  rate  previously  stated,  and  secondly,  after  such  pay- 
ment to  secure  the  East  Tennessee,  Virginia  &  Georgia  Railroad 
company  for  the  loan  of  two  hundred  thousand  dollars,  made  to 
the  party  of  the  second  part  for  reasons  stated  herein  as  to  one 
hundred  thousand  dollars,  and  for  like  reasons  as  stated  in  the  con- 
tract made  by  the  party  of  the  second  part,  and  Charles  M.  Mc- 
Ghee,  and  the  said  East  Tennessee,  Virginia  &  Georgia  Railroad 
company,  and  the  aforesaid  Rufus  Y.  McAden  in  a  contract  pre- 
viously herein  referred  to. 

And  it  is  further  agreed  that  the  party  of  the  second  part  shall 
execute  at  the  proper  time  such  legal  instrument  as  may  be  in  his 
power  to  do,  by  reasons  of  the  title  which  may  at  the  time  vest  in 
him  in  order  to  fully  carry  out,  and  perfect  this  provision  of  this 
agreement,  but  it  is  not  intended  by  this  agreement  to  make  the 
party  of  the  second  part  individually  liable  for  the  deferred  pay- 
ment owing  to  the  party  of  the  first  part  for  balance  of  the  purchase 
money  on. account  of  the  purchase  of  the  aforesaid  bonds,  it  being 
understood  and  agreed  that  the  party  of  the  first  part  is  to  look 
alone  to  the  property  to  be  purchased  by  the  party  of  the  second 
part,  and  held  in  trust  as  aforesaid  as  the  means  by  which  the  pa\  - 
ment  of  his  debt  is  secured,  and  this  is  also  the  understanding  with 


(S4) 

the  parly  of  the  third  part  representing  the  loan  of   two    hundred 
thousand  dollars  previously  referred  to. 

6th.  In  case  the  contemplated  consolidation  of  roads  hereinbe- 
fore mentioned,  and  the  issue  and  sale  of  bonds  are  not  carried  out 
within  two  years  from  the  date  hereof,  then  and  in  that  case  the 
deferred  payment  of  two  hundred  and  seventy  thousand  dollars,  and 
interest  thereon,  or  any  part  of  the  same  then  remaining  unpaid, 
shall  become  due  and  payable,  also  the  two  hundred  thousand  dol 
lars,  borrowed  from  the  East  Tennessee,  Virginia  &  Georgia  Rail- , 
road  company,  with  interest  thereon  at  the  rate  of  seven  per  cent, 
per,  annum,  shall  also  become  due,  and  the  property,  franchises, 
&c,  to  be  purchased  and  held  in  trust  by  the  party  of  the  second 
part,  shall  be  sold  upon  reasonable  notice  to  the  party  of  the  first 
part  by  advertising,  and  the  proceeds  applied  so  far  as  the  same 
may  suffice,  or  be  necessary,  to  the  discharge  of  the  trustees  as 
herein  provided  for. 

7th.  The  securities  of  the  Western  North  Carolina  Railroad 
company  sold  by  the  party  of  the  first  part  in  amount  and  kind  as 
previously  stated  are  deposited  in  the  hands  of  Ward,  Jones  and 
Whitehead  where  they  are  to  remain,  subject,  however,  to  the  or- 
der and  control  of  R.  T.  Wilson,  the  party  of  the  second  part,  so 
far  as  may  become  necessary  for  the  purposes  of  carrying  out  the 
object  and  purposes  of  this  agreement. 

Sth.  In  as  much  as  the  action  of  the  party  of  the  third  part  in 
this  matter  pertains  only  to  the  parties  ol  the  second  and  third 
parts,  and  it  is  probably  not  binding  upon  the  party  of  the  third 
part  until  the  same  is  approved  by  the  Board  of  Directors,  it  is 
agreed  by  the  party  of  the  first  part  and  second  part,  that  the  ap- 
proval or  disapproval  of  the  party  of  the  third  part,  shall  not  affect 
the  validity  of  the  agreement  as  between  the,m,  but  the  same  shall 
be  binding  on  the  parties  of  the  first  and  second  part  when  signed. 

9th.  It  is  hereby  agreed  that  in  case  the  party  of  the  second 
part  shall  so  elect,  he  shall  have  the  privilege  of  substituting  the 
Southern  Railway  Security  company,  a  corporation  existing,  by 
virtue  of  the  laws  of  the  State  of  Pennsylvania,  in  his  stead,  for  all 
purposes  of  the  agreement  as  fully  and  to  all  intents,  and  purposes 
as  if  the  said  Southern  Railway  Security  company  had  been  the 
original  signer  of  this  agreement,  and  at  any  time  during  the  pen- 
dency of  the  same  the  written  assent  of  the  said  Southern  Rail- 
way Security  company  to  be  thus  substituted,  and  due  notice  given 


(35) 

thereof,  by  the  party  of  the  second  part  to  the  other  parties  to  this 
agreement  shall  fully  accomplish  the  substitution 'herein  intended 
to  be  provided  for,  whereupon  the  party  of  the  second  part,  shall 
be  fully  exonerated  and  discharged  as  a  party  to  this  agreement. 

ioth.  If  at  any  time  during  the  pendency  of  this  agreement  the 
said  Southern  Railway  Security  company  shall  elect  to  give  its 
obligation  for  the  amount  of  the  deferred  payment  which  may  then 
be  owing  to  the  party  of  .he  first  part,  the  party  of  the  first  part 
agrees  to  accept  the  same  in  lieu  of  the  herein  provided  for  on  the 
aforesaid  Western  North  Carolina  Railroad,  but  this  provision  does 
not  impair  the  obligation  to  pay  whenever  the  bonds  to  be  issued 
under  this  agreement  shall  be  sold  as  proposed. 

nth.  The  party  of  the  second  part  may  nominate  a  receiver  or 
commissioner  under  the  judicial  proceedings  for  a  foreclosure,  and 
is  to  have  possession  of,  and  operate  said  road  if  purchased  by  him 
so  soon  as  possession  is  legally  obtained. 

In  witness  whereof  the  parties  affix  their  respective  signatures, 
New  York,  November  7th,  1872. 

(Signed)   Hiram  Sibley, 
(Signed)  R.  T.  Wilson, 
The  East  Tennessee,  Virginia  &  Georgia  Railroad  Co., 

(Signed]  by  R.T.Wilson, 
President. 

Witness  :  (Signed)  C.  H.  Basher. 

United  States  of  America,   State  of  JVem  Tork  ; — 5'6'. 

By  this  public  instrument  be  it  known  to  all  whom  the  same  doth  or  may  in 
anywise  concern  that  I,  Henry  C.  Cooper,  a  Public  Notary  in  and  for  the 
county  of  Kings,  State  of  New  York,  by  letters  patent,  under  the  great  seal  of 
the  said  State,  duly  commissioned  and  sworn,  dwelling  in!thecity  of  Brooklyn. 
do  hereby  certify  that  the  annexed  and  foregoing  copy  of  a. 'contract  has  been 
compared  by  me  with  the  original  word  by  word,  and  letter  by  letter. 

And  I  further  certify,  that  the  said  copy  is  a  true  and  correct  copy  of  the  said 
contract. 

In  testimony  whereof  I  have  subscribed  my  name,  and  caused  my  Notarial 
Seal  of  office  to  be  hereunto  affixed  the  twenty-seventh  day  of  June,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  seventy-three. 

Henry  C.  Cooper, 

Notary  Public. 

State  of  Ne-w  Tork,  county  of  Kings  .- — SS.   , 

I,  George  G.  Herman,  Clerk  of  the  county  of  Kings,  and  Clerk  of  the  Supreme 
Court  of  the  State  of  New  York,  in  and  for  said  county,  (said  Court  being  a 
Court  of  record,)  do  hereby  certify,  that  Henry  C.  Cooper,  whose  name  is  sub- 
scribed to  the  certificate  of  proof  or  acknowledgment  of  the  annexed  instru- 
ment, and  thereon  written,  was  at  the  time  of  taking  such  proof  or  acknowledg- 


Probate. 


(86) 

ment  a  Notary  Public  of  the  State  of  New  York  in  and  for  the  said  countv  of 
Kings,  dwelling  in  said  county,  commissioned  and  sworn  and  duly  authorized 
to  the  same.  And  further,  that  I  am  well  acquainted  with  the  hand-writing  of 
such  Notary,  and  verily  believe  the  said  certificate  to  be  genuine. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  affixed  the  seal  of  said 
county  and  Court  this  27th  day  of  June,  1873. 

[Seal  of  Kings  County.]  George  G.  Herman,  Clerk. 

Agreement  made  the  15th  day  of  May,  A.  D.,  1872,  by  and  be- 
tween Rufus  Y.  McAden,  of  Charlotte,  N.  Carolina,  of  the  one  part, 
and  Kich'd  T.  Wilson,  of  the  City  and  State  of  New  York,  and  Chas. 
M.  McGhee,  of  Knoxville,  Tenn.,  of  the  second  part,  and  the  East 
Tennessee,  Virginia  and  Georgia  Railroad  Company,  acting  by  and 
through  its  President,  Rich'd  T.  Wilson,  of  the  third  part. 

Whereas,  The  railway  heretofore  constructed  by  che  Western 
North  Carolina  Railroad  Company,  extending  in  two  divisions  from 
■tw^  Mciden  Salisbury  on  the  line  of  the  North  Carolina  Central  Railroad  to 
McGheef&cf  Paint  Rock,  on  the  State  line  between  the  States  of  North  Carolina 
and  Tennessee,  there  connecting  with  the  Cincinnati,  Cumberland 
Gap  and  Charleston  Railroad,  the  which  extending  from  Paint  Rock 
to  Morristown,  connecting  at  said  named  Paint  Rock  with  the  line 
of  the  East  Tennessee,  Virginia  and  Georgia  Railroad  Company,  so 
that  by  means  of  said  connecting  lines  a  large  interchange  of  busi 
ness  exists  and  its  increase  ma_y  be  reasonably  expected  ; 

And  whereas,  It  is  the  interest  of  the  said  several  lines  of  Railroad 
that  such  consolidations  may  be  effected  and  such  financial  arrange- 
ments made  as  may  relieve  from  financial  difficulties  the  line  hereto- 
fore, of  the  Western  North  CaroHna  Railroad  Company,  and  may 
expedite  and  facilitate  the  transportation  of  traffic  over  said  line  to 
and  from  connecting  railways  ; 

And  whereas,  The  said  line  heretofore  of  the  Western  North  Car- 
olina Railroad  Company  has  come  to  be  vested  by  judicial  sale  in 
Rufus  Y.  McAden  ;  and  the  line  known  as  the  Cincinnati,  Cumber- 
land Gap  and  Charleston  Railroad  is  owned  and  controlled  by  Rich'd 
T.  Wilson  and  Charles  M.  McGhee,  parties  to  this  agreement,  wl  o 
are  also  largely  interested  in  the  stock  and  business  of  the  East 
Tennessee,  Virginia  &  Georgia  Railroad  Company ;  and  the  said 
parties,  for  the  reasons  before  stated,  have  agreed  to  and  with  each 
other  in  the  manner  hereinafter  set  forth. 

Now,  therefore,  this  agreement  witnesseth  : 

That,  for  and  in  consideration  of  the  premises  and  of  the  benefits 
expected  to  result  from  the  arrangements   to  which  this  argreement 


(87) 

relates,  and  also  in  further  consideration  of  the  sum  of  one  dollar  to 
each  of  the  parties  by  the  other,  in  hand  paid,  the  receipt  of  which 
is  .  acknowledged,  the  parties  to  this  agreement  have  mutually- 
agreed  to  and  with  each  other  : 

First.  That  he,  the  said  R.  Y.  McAden,  shall,  by  such  good  and  suffi- 
cient assurances  of  title  as  counsel  learned  in  the  law  may  request 
and  direct,  convey,  grant  and  assure  unto  Rich'd  T.  Wilson,  and 
Charles  M.  McGhee,  jointly  and  severally,  and  to  the  survivor  of 
them,  all  and  singular,  the  franchises,  estate,  real  and  personal,  in 
eluding  the  line  of  Railway  and  its  appurtenances  heretofore  of  the 
Western  North  Carolina  Railroad  Company,  extending  from  Salis- 
bury to  Paint  Rock,  guaranteeing  and  assuring  the  title  to  said  line 
of  Railway,  and  the  franchise  late  of  said  corporation,  free  of  all  liens, 
charge  or  incumbrance  whatsoever,  and  of  any  impeachment  of  its 
title  or  estate,  except  in  so  far  as  certain  outstanding  first  mortgage 
bonds  of  said  Road,  the  which  are  alleged  to  be  binding  upon  the 
same  by  one  Sibley,  or  those  claiming  through  him  are  concerned, 
but  the  which  bonds  and  the  mortgage  given  for  their  security  are 
believed  to  have  been  divested,  so  far  as  any  lien  or  charge  upon  the 
said  line  of  Railway,  or  the  franchises  of  said  corporation  are  con- 
cerned, by  a  judicial  sale  by  and  through  which  the  said  McAden 
claims  to  be  entitled  of  said  line  of  Railway,  and  its 
franchises,  and  the  said  McAden  also  undertakes  and 
agrees  to  hand  over  and  deliver  into  the  possession  and 
ownership  of  the  said  Wilson  and  McGhee  two  hundred 
and  nineteen  of  the  said  first  mortgage  bonds  and  sundry  claims 
against,  and  liability  of  the  said  Western  North  Carolina  Railroad 
Company,  whereof  he  is  possessed,  and  which  constitute  all  of  such 
claims  and  such  liabilities  which  have  come  into  his  possession  or 
control.  But  it  is  expressly  understood  and  agreed,  however,  that 
certain  claims  of  the  Western  North  Carolina  Railroad  Company 
against  G.  W.  Swepson,  M.  S.  Littlefield,  S.  W.  Hopkins  &  Co.,  and 
certain  Florida  Railroad  Companies,  now  in ,  the  possession  of,  or 
belonging  to  the  said  McAden,  shall,  together  with  the  requisite 
remedies  for  their  recovery  be  and  remain  the  property  of  the  said 
McAden,  and  inasmuch  as  doubts  have  been  expressed  with  regard 
to  the  title  of  said  McAden  to  that  portion  of  the  line  of  the  West 
ern  North  Carolina  Railroad  Company  known  as  its  Western  Divis- 
ion, extending  from  Asheville  to  Paint   Rock ;  the  said  McAden  un 


(SS) 

dertakes  and  agrees,  at  his  own  cost  and  expense,  but  for  the  uses 
of  this  agreement,  to  acquire  an  additional  title  to  the  same  at  a  fur- 
ther judicial  sale,  and  to  include  in  his  aforesaid  guarantee,  the  suf- 
fering, in  law  and  equity,  as  well  of  the  title  so  acquired  as  of  that 
previously  acquired  by  him  at  a  former  judicial  sale,  of  the  entire 
line  of  railway  and  its  franchises. 

Second.  It  is  further  covenanted  and  agreed  by  hand  between 
the  parties  that,  as  speedily  as  may  be  practicable,  the  said  Western 
North  Carolina  Railroad  Co.  shall  be  reoi'ganized  under  the  general 
laws  of  the  State  of  North  Carolina  and  of  the  State  of  Tennes 
see,  and  such  further  legislation,  if  any,  as  counsel  learned  in  the 
law  may  deem  requisite,  and  under  such  name  and  with  such  amount 
of  capital  stock  and  other  corporate  qualities  as  may  be  hereafter 
agreed  upon,  and  that  the  said  Company  so  reorganized  shall  con- 
solidate its  corporate  stock  and  franchises  with  those  of  the  corpo- 
ration known  as  the  Cincinnati,  Cumberland  Gap  and  Charleston 
Railroad  Company,  so  that  the  whole  line  of  Railway  extending  from 
Salisbury  to  Morristown  may  be  owned  and  controlled  by  one  cor- 
poration. The  stock  of  said  corporation  shall  be  issued  to  said  Wil- 
son and  McGhee,  who  shall  forthwith  transfer  one  seventh  thereof 
to  said  McAden.  as  provided  in  a  subsequent  article  of  this  agree- 
ment. 

Third.  In  consideration  of  the  premises,  it  is  further  covenanted 
by  and  between  the  parties,  that  bonds  shall  be  issued,  and  a  mort- 
gage created  by  the  said  new  corporation,  organized  to  hold  and 
administer  the  franchises  of  said  consolidated  line  of  Raflway  for 
such  an  amount  as  may  be  hereafter  agreed  upon,  provided,  howev- 
er, that  such  amount  shall  not  exceed  eighteen  thousand  dollars  per 
mile  of  the  length  of  line  of  the  said  consolidated  Railway,  if  the 
same  be  made  to  bear  seven  per  cent,  per  annum  interest  for  twenty 
thousand  dollars  per  mile,  if  such  bonds  be  maue  to  bear  six  pel- 
cent,  interest,  the  principal  and  interest  of  which  bonds  shall  be 
made  payable  in  gold. 

Fourth.  And  in  consideration  of  the  grant  and  transfer  as  afore- 
said, of  the  Western  North  Carolina  Railroad,  made  by  the  said  Mc- 
Aden, it  is  agreed  that  the  said  East  Tennessee,  Virginia  &  Georgia 
Railroad  Company  shall  accept  the  drafts  of  six  months  of  the  said 
McAden,  to  be  presently  drawn  to  the  aggregate  amount  of  one 
hundred  thousand  dollars  divided  into  such  money  as  may  be  most 


(89) 

convenient  for  the  purpose  of  procuring  the  discounting  of  the  same. 

And  furthermore,  that  upon  the  creation  of  the  mortgage  afore- 
said the  said  McAden  shall  be  entitled  to  receive,  in  the  option  of 
the  said  Wilson  and  McGhee,  or  the  survivor  of  them,  either  three 
hundred  thousand  dollars  in  cash,  or  the  equivalent  of  that  amount 
in  said  bonds  of  the  new  corporation  at  seventy  five  cents  in  the 
dollar,  if  such  bonds  be  six  per  cent,  boads,  or  at  eighty  cents  in  the 
dollar,  if  the  same  be  seven  per  cent,  bonds,  and  the  payment  of 
three  hundred  thousand  dollars  shall  be  made  in  bonds,  then  the 
said  East  Tennessee,  Viginia  and  Georgia  R  lilroad  Company  agrees 
to  accept  the  drafts  of  the  said  Mclden  at  six  months,  to  an  amount 
not  exceeding  one  hundred  thousand  dollars,  conveniently  divided, 
receiving  as  collateral  security  for  the  same  the  aforesaid  bonds  is 
sued  in  payment  of  three  hundred  thousand  dollars. 

And  it  is  further  understood  and  agreed  that  the  said  McAden  is 
to  receive  and  have  one  seventh  part  of  the  entire  capital  stock  of 
the  said  reorganized  and  consolidated  Company,  the  which  one  hun- 
dred thousand  dollars  of  cash  acceptances  and  three  hundred  thou- 
sand dollars  paid  in  cash,  or  bonds  as  aforesaid,  and  one-seventh  of 
the  capital  stock  of  the  reorganized  and  consolidated  Road  is  to  con- 
stitute the  entire  consideration  paid  to  the  said  McAden  for  the  title 
to  the  said  line  of  Railway  of  the  said  Western  North  Carolina  Rail- 
road Company  and  its  franchises,  and  the  assurance  of  a  good  title 
in  the  same,  subject  only  to  the  aforesaid  qualification  as  to  the 
aforesaid  bonds,  alleged  to  be  due  by  said  Road,  and  to  be  charged 
against  its  works  by  said  Sibley,  and   those  claiming  under  him. 

Fifth.  The  said  one  hundred  thousand  dollars  of  acceptances 
presently  made  by  the  said  East  Tennessee,  Virginia  and  Georgia 
Railroad  Company  shall  be  repaid  to  it  out  of  the  proceeds  of  the 
sale  of  the  bonds  of  the  reorganized  and  consolidated  Company. 

Sixth.  The  said  Wilson  and  McGhee  are  to  receive  in  payment 
for  the  line  of  Railway  and  its  appurtenances,  and  the  franchises  of 
the  Cincinnati,  Cumberland  Gap  and  Charleston  Railroad  Company, 
its  cost  price  to  them  being  about  the  sum  of  two  hundred  thou- 
sand dollars,  out  of  the  proceeds  of  the  sale  of  the  bonds  of  the  re- 
organized and  consolidated  Company  aforesaid. 

Seventh.  It  is  further  covenanted  and  agreed  that  all  the  bonds 
issued  by  the  reorganized  and  consolidated  Company,  and  secured 
by  its  first  mortgage,  shall  be  placed  for  the  purpose  of  sale,  in  one 
pool,  and  the  proceeds  of  sale  divided  between  the  said  corporation 


(9°) 

and  the  said  McAden,  ratably  to  the  amount  of  bonds  he'd  by  them 
respectively. 

(Signed,)  R.  T.  McAden, 

(Signed,)  R.  T.  Wilson, 

(Signed,)  C.  M.  McGhee, 

The  East  Tenn.,  Virginia  &  Georgia  Railroad  Co., 
(Signed,)  By  R.  T.  Wilson.  Pres'r, 

R.  Y.  McAden. 

United  States  of  America,  State  of  New  York  : — S^S". 

By  this  public  instrument  be  it  known,  to  all  to  whom  the  same  doth  or  mav 

in  anywise  concern,  that  I,  Henry  C.  Cooper,  a    Public   Notary  in  and  for  the 

county  of  Kings,  State  of  New  York,  by  letters  patent  under  the   great  seal   of 

Probate.  the  said  State  duly  commissioned  and  sworn,  dwelling  in  the  city  or'  Brooklyn  ; 

Do  certify  that  the  annexed  and  foregoing  copy  of  a  contract  has  bjen  com- 
pared by  me  with  the  original,  word  by  word  and  letter  by  letter. 

Andl  further  certify  that  the  said  copy  is  a  true  and  correct  copj-  of  the  said 
contract. 

State  of  New   York,  Comity  of  Kings  : — 55. 

I,  George  G.  Herman,  Clerk  of  the  County  of  Kings,  and  CI  rk  of  the  Su- 
preme Court  of  the  State  ot  New  York,  in  and  for  said  county,  (said  Court  be- 
in^  a  Court  of  record.)  do  hereby  certify  th;it  Henry  C.  Cooper,  whose  name 
is  subscribed  to  the  certificate  of  proof  or  acknowledgment  of  the  annexed  in- 
strument and  thereon  written,  was  at  the  time  of  taking  such  proof  or  acknowl- 
edgment a  Notary  Public  of  the  State  of  New  York  in  and  for  the  said  coun- 
ty of  Kings,  dwelling  in  said  county,  commissioned  and  sworn  and  duly  autho- 
rized to  take  the  same  ;  and  further  that  I  am  well  acquainted  with  the  hand- 
writing of  such  Notary,  and  verily  believe  the  signature  of  said  certificate  is 
genuine. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  affixed  the  seal  of 
said  County  and  Court  this  27th  day  of  June,  1S73. 

[Seal.]  George  G.   Herman,  Clerk. 

In  testimony  whereof  I  have  subscribed  mv  name  and  caused  my  Notarial 
seal  of  oiHce  to  be  hereunto  alhxed  the  twenty-seventh  day  of  June  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  seventy -three. 

[Seal.]  Henry  C.  Cooper, 

Notary   Public. 

Slate  of  North  Carolina.    Guilford  County  : 

In  consideration  of  and  in  furtherance  of  a  contract  entered  into  of  tins  date, 
Assignment  to  between  the  last  Tennessee,  Tirginia  and  Georgia  Railroad    Company.  R.  Y. 
1  McAden,  Willi  m  A    Smith,  as  agent  and  trustee,  do  hereby  assign  and*  transfer 

all  the  right,  title  ad  interest,  property  and  claim  resting  in  them  and  either  of 
them,  under  the  within  contracf  to  Curtis  H.  Brogden,  Governor  of  the  State 
of  North  Carolina,  Robert  F.  Ar,ri!deld  and  James  L.  Robinson,  Commission- 
ers appointed  by  an  act  of  the  General  Assembly  of  said  State,  ratified  March 
13th,  1S75,  entitled  an  act  in  relation  to  the  Western  North  Carolina  Railroad. 
This  April  17th,  1S75. 

For  the  Western  North  Carolina  Railroad,  bv 

W.  A.  Smith.   Agent  and  Trustee. 
In  presence  of  W.  N.   H.  Smith. 


(90 

These  articles  of  agreement  made  and  entered  into  the  thirty  first 
day  of  October,  Anno-Domini,  one  thousand  eight    hundred  and 
seventy-three,  by  and    between  the    Southern  Railway    Security 
company,  a  corporation  created  and  existing  under  the  laws  of  the    Agreera't  be- 
State  of  Pennsylvania,  as  party  of  the  first  part,  the  North  Carolina    Railway0  See 
Railroad  company,  a  corporation  created  and    existing    under  the   r°'co.,' R.  t! 
laws  of  the  State  of  North  Carolina,  as  party  of  the  second    part,   Wilsou-etal- 
the  East  Tennessee,  Virginia  &  Georgia  Railroad  company,  a  cor- 
poration created  and  existing  under  the  laws  of  the  States  of  Geor- 
gia and  Tennessee  as  party  of  the  third  part,  R.    Y.    McAden,  of 
Charlotte,  North  Carolina,  as  party  of  the  fourth  part,  and  W.  A. 
Smith,  of  North  Carolina,  in    the  double    capacity  of   agent  and 
trustee  ot  the  parties  of  the  first,  second,  and  third  parts,  as    party 
of  the  fifth  part. 

Witness,  whereas  the  party  of  the  first  part,  has  heretofore  pur- 
chased securities  on  the  Western  North  Carolina  Railroad  com- 
pany, and  the  title  and  ownership  to  the  aforesaid  road,  including 
both  the  Eastern  and  Western  Divisions,  to  the  extent  and  in  the 
manner  stated,  and  set  forth  in  the  following  contracts,  viz  :  first 
contract  between  Richard  T.  Wilson,  C.  M.  McGhee,  the  East 
Tennessee,  Virginia  &  Georgia  Railroad,  and  R.  Y.  McAden, 
bearing  date  of  fifteenth  of  May,  Anno-Domini,  one  thousand 
eight  hundred  and  seventy-two;  secondly, contract  between  Richard 
T.  Wilson,  Hiram  Sibley,  and  the  East  Tennessee,  Virginia  and 
Georgia  Railroad  company,  bearing  date  November  seventh,  An- 
no-Domini, one  thousand  eight  hundred  and  seventy-two;  and 
thirdly,  contract  between  the  Southern  Railway  Security  company, 
R.  Y.  McAden,  the  East  Tennessee,  Virginia  &  Georgia  Railroad 
company,  R.  T.  Wilson,  and  C.  M.  McGhee  'and  R.  T.  Wilson, 
transferring  the  Sibley  contract,  bearing  date  June  twenty-third, 
Anno-Domini,  one  thousand  eight  hundred  and  seventy-three, 
copies  of  all  of  said  contracts  are  hereto  attached,  and  referred 
to,  and  made  a  part  of  this  agreement.  The  aforesaid  parties  res- 
pectively agree  with  each  other  in  manner  following,  to-wit  : 

Firet.  The  party  of  the  second  part  has  purchased  all  of  the  right,  ' 
title,  claim,  and  interest  of  and  from  all  of  the  other  parties  to  this 
agreement  in  the  aforesaid  Western  North  Carolina  Railroad  com- 
pany, including  all  the  securities,  judgments,  debts  of  every  nature, 
and  kind  whatsoever,  that  are  owned  by,  through,  or  under  the 
aforesaid  contracts,  or  that  are  otherwise    owned    by    any    of  the 


(93) 

parties    to    this  agreement    upon  the    terms  and  condition  herein 
stated. 

Second.  The  party  of  the  second  part  has  paid  to  the  party  of 
the  third  part  its  two  promissory  notes  amounting  to  thirty-eight 
thousand  nine  hundred  and  eighty-four,  27100  ($38,984.27)  dollars 
due  and  payable  on  the  First  day  of  Januray,  Anno-Domini,  one 
thousand  eight  hundred  and  seventy-four,  and  seven  amounting  to 
one  hundred  and  seventy-five  thousand  ($175,000)  dollars,  due  and 
payable  on  the  First  day  of  July,  Annc-Domini,  one  thousand 
eight  hundred  and  seventy-tour,  all  bearing:  interest  at  the  rate  cf 
seven  per  cent,  per  annum,  and  hereby  agrees  to  pay  the  deferred 
payment  to  Hiram  Sibley  L.pon  the  terms  and  conditions  stated  in 
contract  with  Hiram  Sibley  and  other  parties  previously  referred 
to;  and  the  party  of  the  second  part  hereby  agrees  to  assume,  and 
pay  all  the  expense  ,  incident  to  the  aforesaid  contracts,  that  may 
have  been  or  may  hereafter  be  incurred  by  any  of  the  parties  to 
them. 

Third.  It  is  hereby  agreed  that  the  party  of  the  second  part  is 
to  take  full  control  and  direction  of  all  legal  proceedings  necessary 
to  consummate  the  procurement  of  a  clear  title  to  Western  North 
Carolina  Railroad,  and  to  prosecute  the  same  with  reasonable 
diligence  and  bring  the  road  to  sale  as  soon  as  practicable. 

Fourth.  It  is  agreed  that  when  the  road  is  brought  to  sale,  or 
when  any  title  to  it  may  otherwise  be  obtained,  that  if  sold  it  shall 
be  purchased  by  the  party  of  the  fifth  part,  as  agent  and  trustee  of 
the  parties  of  the  first,  second,  and  third  part.or  if  the  title  is  other- 
wise acquired  it  shall  be  likewise  held  by  the  party  of  the  fifth 
part,  as  agent  and  trustee;  first,  to  secure  the  deferred  payment  to 
Hiram  Sibley,  as  set  forth  in  copy  of  contract  hereto  attached,  and 
secondly  to  secure  any  part  of  the  notes  this  day  given  by  the  party 
of  the  second  part  to  the  party  of  the  third  part  which  may  then 
remain  unpaid,  and  the  party  of  the  fifth  part  hereby  accepts  the 
agency  and  trust,  and  agrees  to  carry  the  purposes  of  the  same  in- 
to effect  at  the  proper  time,  and  also  further  agrees  to  execute  pro- 
per legal  liens  on  said  Western  North  Carolina  Railroad  so  tar  as 
may  be  in  his  power  to  do;  to  make  more  complete  the  liens  herein 
provided  for,  or  intended  to  be  provided  for. 

Fifth.  After  the  aforesaid  amounts  are  paid  and  discharged  or 
otherwise  satisfactorily  provided  for,  then  all  claims  and  demands 
of  the  parties  of  the  first  and  third  parts  shall  cease,  and  the  party 


(93) 

of  the  second  part  shall  become  entitled  to  all  the  rights  of  both 
the  first  and  third  parties,  in  the  premises. 

Sixth.  The  party  of  the  second  part,  has  this  day  executed  to  the 
party  of  the  fourth  part,  its  promissory  notes,  five  payable  on  the 
first  day  of  January,  Anno  Domini,  one  thousand  eight  hundred 
and  seventy-four,  amounting  to  fifty  thousand  ($50,000)  dollars, 
five  payable  on  the  first  of  July,  one  thousand  eight  hundred  and 
seventy-four,  amounting  to  fifty  thousand  ($50,000)  dollars,  and 
also  agrees  to  pav  a  further  sum  of  two  hundred  thousand  dollars, 
($200,000,)  in  seven  per  cent,  gold  bonds  to  be  issued  by  the  party 
of  the  second  part  at  ninety  cents  on  the  dollar  with  interest  at  the 
rate  of  seven  per  cent,  per  annum  from  the  first  day  of  May,  Anno- 
Domini,  one  thousand  eight  hundred  and  seventy-three,  on  all  the 
payments. 

Seventh.  The  bonds  to  be  paid  to  the  party  of  the  fourth  part, 
by  the  party  of  the  second  part  within  a  reasonable  time  after  the 
party  of  the  second  part  acquires  a  clear  title  to  the  Western  North 
Carolina  Railroad,  and  when  legal  authority  is  obtained  to  con- 
solidate them  with  the  North  Carolina  Railroad. 

Eighth.  The  true  intent  and  meaning  of  this  agreement  is  that  the 
party  of  the  second  part  shall  have  and  hold  all  the  interest  in  the 
aforesaid  premises  upon  the  terms  and  conditions  herein  stated 
which  are  or  may  be  hereafter  acquired  under  the  aforesaid  con- 
tracts, or  otherwise  by  the  party  of  the  fourth  part,  and  shall  pay 
and  discharge  all  costs  and  expenses  incident  thereto,  and  that 
neither  the  party  of  the  first  or  third  parts  shall  be  responsible 
for  the  prosecution  of  the  said  suit,  nor  for  the  issue  of  any  bonds, 
cr  for  an}-  payments  to  be  made  to  McAden  the  party  of  the  fourth 
part;  and  he  hereby  accepts  the  substitution  of  the  party  of  the 
second  part,  and  discharges  all  the  other  parties  from  all  and  every 
liability  of  every  kind  and  nature  whatsoever. 

Ninth.  The  said  Rufus  Y.  McAden, *party  of  the  fourth  part, 
joins  in  and  assents  to  these  articles  of  agreement,  and  now  enters 
into  the  same  covenants  and  agreements,  with  the  party  of  the 
second  part,  which  are  contained  in  his  covenants  and  agreements 
with  R.  T.  Wilson,  C.  M.  McGhee  and  the  East  Tennessee,  Vir- 
ginia &  Georgia  Railroad  company  referred  to  in  this  agreement, 
and  especially  the  one  dated  fifteenth  day  of  May,  one  thousand 
eight  hundred  and  seventy-two,  relative  to  his  titles,  interest  and 
claims  in    the  Western    North  Carolina   Railroad  company  from 


(94) 

Salisbury  lo  Paint  Rock,  and  the  said  Rufus  Y.  McAden  doth 
now  farther  covenant  and  agree  with  the  party  of  the  second  part 
to  transfer  and  assign  to  the  party  of  the  second  part  all  judg- 
ments, debts  and  claims  which  he  may  have  either  in  his  own 
name  or  in  the  names  of  other  persons  against  the  Western  North 
Ccrolina  Railroad  Company. 

Tenth.  It  is  agreed  by  and  between  the  parties  of  the  second 
and  third  part  that  a  contract  shall  be  entered  into,  and  placed  on 
record,  binding  each  to  the  other  to  interchange  bus-mess  upon  a 
perfectly  equitable  pro  rate  basis,  which  contract  shall  be  executed 
whenever  the  consolidation  of  the  Western  North  Carolina  Roads  is 
made  with  the  North  Carolina  Railroad  Company,  and  shall  continue 
in  force  for  a  period  of  not  less  than  ninety-nine  years.  The  spirit 
of  the  contract  shall  bind  each  to  take  the  through  business  from 
the  other  at  the  same  pro  rate  per  mile  that  is  charged  by  the  Road 
from  which  it  comes. 

The  party  of  the  second  part  agrees  that  it  will  endeavor  to  pro- 
cure the  necessary  legislation  to  authorize  the  consolidation  of  the 
North  Carolina  and  the  Western  North  Carolina  Railroads,  and  tl-:at 
as  soon  as  such  legislation  can  be  had,  and  the  title  of  the  Western 
North  Carolina  Railroad  procured  as  aforesaid,  the  party  of  the  sec- 
ond pare  agrees  to  proceed  in  the  work  of  completing  the  line  of  the 
Western  North  Carolina  Railroad  from  Old  Fort  to  Paint  Rock,  and 
in  case  suitable  legislation  cannot  be  obtained  to  authorize  a  consol 
idation  as  aforesaid,  the  party  of  the  second  part  agrees  to  build  or 
construct  the  aforesaid  Road  from  Old  Fort  to  Paint  Rock,  to  be 
built  within  a  reasonable  time  after  the  title  to  the  Western  North 
Carolina  Road  is  obtained,  and  the  party  of  the  third  part  agrees  to 
build  from  the  present  terminus  of  the  Road  known  as  the  Morris- 
town  branch,  to  Paint  Rock,  so  as  to  meet  the  Western  North  Caro- 
lina Road  there  by  the  time  it  is  completed  to  that  point,  and  it  is 
mutually  understood  and  agreed  by  and  between  the  parties  of  the 
second  and  third  part,  that  the  agreement  on  the  part  of  each  other 
to  build  or  cause  to  be  built,  roads  or  part  of  roads,  as  aforesaid, 
together  with  the  obligations  to  make  a  contract  for  an  equitable 
interchange  of  business  and  traffic,  without  unreasonable  delay,  con- 
stituting a  part  of  the  consideration  of  this  agreement. 

In  witness  whereof  the  parties  to   this  agreement  have   hereunto 
affixed  their  respective  signatures  : 


(95) 

New  Yoke,  October  30th,  Anno  Domino,  One  Thousand  Eight  Hun- 
dred and  Seventy-three. 
In  presence  of  Southern  Bailway  Security  Company, 

[seal,]  By  W.  O.  Hughart,   President. 

For  the  North  Carolina  Railroad  Company, 

By  W.  A.  Smith,  President. 
Official  signatures  of  the  President  of   the  North  Carolina  Railroad 
Company,  J.  A.  McCauley,  Sec'y, 

N.  C.  R  R.  Co. 
The  East  Tennessee,  Virginia  and  Georgia  Railroad  Company, 

By  R.  T.  Wilson,  President. 
R.  Y.  McAden, 
W.  A.  Smith, 
Agent  and  Trustee. 
Witness  :     J.  A.  McCauley. 

North  Carolina,    Guilford   County  : 

Agreement  entered  into  this  17th  day  of  April,  1875,  by  and  between 

the  East  Tennessee,  Virginia  and  Georgia  R  ailroad^Co,,   party   of 

the  first  part,  Rufus  Y  McAdan,   party  of   the   second  part,    the 

North  Carolina  Railroad  Company,  party  of   the   third   part,  and 

Wm.  A.  Smith,  as  agent  and  trustee,  party  of  the  fourth  part  : 

Whereas,   Certain    articles   of  agreement,    bearing  date   October 

31st,  1873,  have  been  entered  into,  between  the   Southern   Railway 

Security  Company  and   the   parties  above   named,  wherein,  on  the 

terms  and  conditions  therein  mentioned,  the  said  the  North  Carolina 

Railroad  Company  purchased  all  of  the  right,    title,  claim  and  inter 

est  of,  and  from  ail  thy  other  parties  k'ta   the  aforesaid   agreement,'1 

in  the  Western  North  Carolina  Railroad   Company,   including   both 

the  Eastern  and  the  Western  Divisions  thereof,   and   all   the  securi 

ties,  stocks,  and  other  prjperty  and   effects  in    said  agreement  and 

ks  a-  companying  exhibits,  described  and  intended  to   be    assigned, 

as  by  reference  thereto  will  appear  ; 

And  whereas,  The  said  the  North  Carolina  Railroad  Company  has 
made  and  delivered  to  the  said  the  East  Tennessee,  Virginia  and 
Georgia  Ra  lroad  Company  and  s  id  Rufns  Y.  McAden,  respectively, 
certain  promissory  notes  as  in  said  agreement  specified  and  de 
scribe  1,  and  has  paid  upon  said  notes  so  held  by  said  Rufus  Y.  Mc 
Aden  the  sum  of  twenty  thousand  dollars ; 

And  whereas,  The  said  the  Western  North  Carolina   Railroad  Co. 


(96) 

has  been  restrained  and  disabled  by  an  order  for  an  injunction  made 
by  the  Hon.  H.  L.  Bond,  Circuit  Judge  of  the  United  States,  from 
carrying  into  effect  the  said  agreement,  and  accomplishing  the  pur- 
poses for  which  it  was  executed  ; 

And  wheeeas.  The  said  the  North  Carolina  Railroad  Company  and 
"William  A.  Smith,  agent  and  trustee,  as  aforesaid,  have  been  author- 
ized and  directed  by  the  other  parties  to  this  contract,  now  about  to 
be  entered  into,  to  assign  and  convey  all  the  rights,  property  and 
interest  of  every  kind,  whatsoever,  vesting  in  them,  and  each  one  of 
them,  under  said  agreement,  to  Curtis  H.  Brogden,  Governor  of  the 
State  of  North  Carolina,  Robert  F.  Armfield  and  James  L.  Robin- 
son, commissioners  appointed  and  acting  under  an  act  of  the  Gen- 
eral Assembly  of  said  State,  entitled,  "an  Act  in  relation  to  the 
Western  North  Carolina  Railroad,"  ratified,  March  13th,  1875  ; 

And  whereas,  The  Board  of  Directors  of  the  said  the  North  Caro- 
lina Railroad"  Company  have  by  resolution  authorized  and  directed 
the  said  William  A.  Smith,  the  president  thereof,  to  make  such 
assignment  and  to  execute  this  contract,  or  its  part  and  on  its  be- 
half. 

And  thereupon,  in  consideration  of  the  premises,  the  said  the 
North  Carolina  Railroad  Company  and  the  said  William  A.  Smith, 
agent  and  trustee,  as  aforesaid,  do  contract  to  assign  and '  transfer 
to  said  commissioners  all  the  interest,  rights  and  property  vesting 
in  them  and  each  of  them,  as  aforesaid,  under  and  by  virtue  of  the 
agreement  aforesaid. 

And  the  said  the  East  Tennessee,  Virginia  and  Georgia  Railroad 
Company  and  said  Rufus  Y.  McAden  do  contract,  each  for  himself, 
to  surrender  the  several  promissory  notes  aforesaid,  to  the  said 
North  Carolina  Railroad  Company  ."or  cancellation,  and  to  exhonor- 
ate  the  said  North  Carolina  Railroad  Company,  and  said  William  A. 
Smith,  agent  and  trustee,  as  aforesaid,  and  release  and  discharge 
them  from  all  further  liability  under  said  agreement  and  the  provis- 
ions therein  contained. 

And  the  said  Rufus  Y.  McAden  contracts  to  repay  the  money  so 
paid  to  him  as  hereinbefore  mentioned  to  the  said  the  North  Caroli- 
na Railroad  Company,  in  bonds  authorized  and  proposed  to  be  is- 
sued under  and  virtue  of  the  act  of  the  General  Assembly  aforesaid. 

And  in  order  to  give  full  effect  to  this  contract,  Edward  Mathews 
of  the  city  of  New  York,  who,  as  assignee  of  Hiram  Sibley,  also  of  New 


(97) 

York,  has  succeeded  to  the  rights  and  interest  of  the  latter,  under 
said  agreement  of  October  31st,  1873,  assents  to,  and  ratines  this 
contract,  and  exho  no  rates  and  discharges  the  above  named  parties, 
and  each  of  them,  from  all  further  liability  to  him  and  his  assignor 
in  the  said  agreement  of  Oct.  31st,  1873,  aforesaid. 

In  testimony  whereof  the  parties  hereunto  subscribe  their  names 
the  dates  first  aforesaid  : 

The  East  Tenn.,  Virginia  and  Georgia  "Railroad  Co., 

By  R.  T.  Wilson,  President. 
R.  Y.  McAden, 
North  Carolina  Railroad  Company, 

By  W.  A.  Smith,  President  and  Trustee. 
Edward  Mathews. 
In  presence  of  W.  N.  H.  Smith. 

I)i  the  Circuit  Court  of  the   United  States  for    the     Western    District  of 

North  Garoiiua,  October  Term,  1875. 
Henrv  Clews,  Hiram  Sibley,  and  Richard  Norris  and  Henry  Latimer,  partners 
trading  as  Richard  Norris  &  Son,    Robert  A.  Lancaster,  Herbert  T.  Atkin- 
son, James  C.  Mebane, Proudfit,    and   the    North    Carolina  Railroad 

Company, 

Against 
The  Western  North  Carolina  Railroad  Company,  (Eastern  Division,)  and  oth- 
ers, Defendants.  Trial  Tecree. 
In  this  cause  George  Gregory  and  J.  I.  Scales,  heretofore  appointed  Refer- 
ees to  credit  and  settle  and  report  upon  the  accounts  of  Wm.  A.  Smith.  Re- 
ceiver, having  filed  their  original  incomplete  report  on  the  7th  of  September 
last,  and  at  this  Term  having  filed  a  supplemental  and  full  report  showing  the 
state  of  accounts  of  said  Wm.  A.  Smith  as  such  Receiver  up  to  30th  of  Sep- 
tember, 1875,  and  no  exception  being  taken  to  said  report  of  the  said  Referees, 
on  consideration  thereof  it  is  ordered,  adjudged  and  decreed  by  the  Court  that 
said  reports  be  in  all  things  confirmed,  and  that  said  Referees,  besides  two 
hundred  dollars  each  allowed  them  heretofore  and  paid  to  them  and  deducted 
in  the  first  part  of  said  Reports,  be  allowed  the  further  sum  of  fifty  dollars 
each,  to  be  paid  to  them  out  of  the  balance  reported  as  in  the  hands  of  the  Re- 
ceiver in  the  Supplemental  Report. 

And  the  Commissioners,  T.  Ruffin  and  Thomas  B.  Keogh,  appointed  to 
cancel  the  bonds  provided  for  in  a  former  decree,  and  thereupon,  with  direc- 
tions to  deliver  a  deed  conveying  the  said  Railroad  and  all  its  property  and 
franchises  unto  the  State  of  North  Carolina,  to  her  agents  mentioned  in  the 
former  decree,  having  now  filed  their  report  showing  a  production  and  a  can- 
cellation of  all  of  the  said  bonds,  and  a  delivery  of  a  deed  to  the  State  of  North 
Carolina,  and  no  exception  being  taken  to  that  report,  it  is  ordered,  adjudged 
and  decreed  by  tie  Court,  that  the  said  last  mentioned  report  be  and  the  same 
is  hereby  in  all  things  confirmed. 

And  now  this  cause  coming  on  to  be  heard  on  further  directions,  and  being 
now  heard  on  the  papers  formerly  read  ;  the  former  decrees  entered  in  the 
cause  and  on  me  said  Reports  of  the  Referees  aforesaid,  and  the  Reports  of 
Thomas  Ruffin  and  Thomas  B.  Keogh,  on  consideration  thereof  the  Court  doth 
declare  as  follows  : 

1st.  That  all  of  the  Mortgage    Bonds   provided    in    a    former   deeree  in  the 


(98) 

cause  have  been  produced  to  and  cancelled  by  the  Commissioners  appointed  for 
that  purpose,  T.  Ruffin  and  Thos.  B.  Keogh. 

2nd.  That  a  deed  to  the  State  of  North  Carolina  upon  the  cancellation  of 
said  bonds  has  been  delivered  to  Curtis  H.  Brogden,  Governor,  and  R.  F.  Arm- 
field,  President  of  the  Senate  and  James  L.  Robinson,  Speaker  of  the  House  of 
Representatives,  for  the  purpose,  under  an  Act  of  the  General  Assembly  ratified 
the  13th  dav  of  March,  1S75. 

3d.  That  Wm.  A.  Smith,  Receiver,  surrendered  up  the  Railroad  and  all  its 
propertv,  and  all  management  thereof",  on  the  1st  day  of  October,  1S75,  unto 
the  agents  appointed  by  the  State  to  receive  the  same,  and  the  Court  doth  find 
and  declare,  in  accordance  with  the  said  last  report  of  the  Referees,  that  there 
was  in  the  hands  of  the  said  Wm.  A.  Smith,  Receiver,  ($8,016.17.)  eight  thous- 
and and  sieteen  dollars  and  seventeen  cents  of  currency,  and  six  hundred  and 
fortv-three  dollars  of  the  bills  of  the  Bank  of  .\lecklenburg.  being  the  net  earn- 
ings' of  the  road  since  the  1st  day  of  May,  1S75,  and  that  said  Wm.  A.  Smith 
paid  over  the  same  to  the  State  of  North  Carolina. 

4th.  That  there  is  in  the  hands  of  said  William  A.  Smith,  Receiver,  at  the 
time,  the  sum  of  ($1,1550.02,)  fifteen  hundred  and  fifty  dollars  and  two  cents,  of 
the  earnings  of  the  Road,  prior  to  the  1st  of  May,  1875,  which  is  due  to  the  par- 
ties, and  in  the  proportions  mentioned  in  an  article  of  agreement  referred  to 
and  described  in  a  former  decree  in  the  cause,  after  first  deducting  therefrom 
the  allowances  of  fifty  dollars  each  to  George  Gregory  and  J.  I.  Scales,  and 
also  the  sum  of  three" hundred  dollars,  balance  of  fees  and  allowances,  due  Jo.m 
W.  Pavne,  clerk  of  the  court. 

And' now,  on  the  foregoing  declarations,  it  is  adjudged  by  the  Court  that  the 
cancellation  of  the  bonds  provided  for  in  a  former  decree,  and  also  the  delivery 
ofadeedfo  he  Stateof  North  Carolina  was  proper,  and  hereby  has  the  full  sanc- 
tion and  a  iproval  of  this  Co  r  ,  and  that  the  said  State  henceforth  do  have  and 
possess -the  said  Western  North  Carolina  Railroad  and  all  its  property  and 
franchises,  as  her  own  absolute  property  ;  and  it  is  further  ordered,  adjudged 
and  decreed,  bv  the  Court,  that  Wm.  A.  Smith,  Receiver,  pay  out  the  said  bal- 
ance of  fifteen  hundred  and  fifcy  dollars  and  two  cents,  now  in  his  hands,  as  fol- 
lows, to-wit  :  Fifly  dollars  each  to  George  Gregory  and  J.  I.  Scales,  and  then 
pay  to  John  W.  Pavne  three  hundred  dollars  for  balance  of  fees  due  him  as 
clerk  of  the  Court,  and  the  residue  ($1,150.02,)  eleven  hundred  and  fifty  dollars 
and  two  cents,  to  the  parties  mentioned'in  said  article  of  agreement  described 
above  as  referred  to  in  the  former  decree,  and  thereupon  the  said  William  A. 
Smith  is  discharged  from  any  and  all  liability  for,  or  on  account  of  his  said  Re- 
ceivership. 

Robt.   P.  Dick. 

U.  S.  Dist.  Judge 

I,  Jno.  W.  Pavne,  Clerk  of  the  Circuit  Court  of  the  United  States,  for  the 
Western  District  of  North  Carolina,  at  Greensboro,  in  said  District,  certify  thai 
the  foregoing  is  a  correct,  true  and  complete  transcript  of  the  record  in  an  ac- 
tion in  the  Court  of  Equitv,  lately  pending  in  said  Circuit  Court,  wherein  Hi 
ram  Siblev  and  Henry  Clews,  et  ah,  Avere  plaintiffs,  and  Western  North  Caroli 
na  Railroad  Company,  Tod  R.  Caldwell,  trustee,  and  others,   were  defendant? 

In  testimonv  whereof,  I  have  hereunto  set  my  hand  and  affixed  the  seal  o 
said  Court,  at  "office  in  Greensboro,  this  14th  day  of  Sept.,  1877. 

[seal.  Jno.  W.  Payne,  Clerk. 


(99) 

This  indenture  made  this  the  third  day  of  August,  1S75,  hetween 
B.  S.  Gaither,  Thos.  B.  Keogh  and  Thos  Ruffin,  commissioners  of 
the  Circuit  Court  of  the  United  States  for  the  Western  District  of 
North  Carolina,  of  the  first  part,  and  the  State  of  North  Carolina 
of  the  second  part,  witnesseth  that  whereas  the  said  Gaither,  ^^sione'rs™. 
Keogh  and  Ruffin,  together  with  Marcus  Erwin,  were  appointed  the  state. 
by  the  said  Circuit  Court,  at  April  Term,  1S75,  commissioners  by 
a  decree  rendered  in  the  case  pending  in  said  Court  wherein  Henry 
Clews,  Hiram  Sibley  and  others  were  plaintiffs,  and  the  Western 
North  Carolina  Railroad,  (Eastern  Division,)  and  others  were 
defendants,  to  sell  the  said  Western  North  Carolina  Railroad, 
(Eastern  Division,)  extending  from  the  eastern  terminus  in  the  city 
of  Salisbury,  in  the  State  of  North  Carolina,  to  its  western  term- 
inus, m  the  county  of  Buncombe,  iu  the  said  State,  including  all 
the  ways,  railways,  road-beds,  rights  of  way,  depot  ground  and 
other  land  belonging  to  the  same,  all  tracks,  bridges,  viaducts, 
culverts,  fences,  depot  stations,  houses,  engine-houses,  car  houses, 
freight-houses,  wood-houses,  and  every  building  or  structure  there- 
unto belonging,  all  machine  shops  and  other  shops  whatsoever 
held  and  owned  by  the  said  railroad,  and  used  in  connection  there- 
with, and  in  conducting  the  business  thereof,  also  all  locomotives, 
tenders,  cars,  and  other  rolling  stock,  all  equipments,  machinery, 
tools,  implements,  fuel  and  material  ior  constructing,  operating, 
repairing,  or  regulating  the  said  railroad,- or  any  part  thereof,  also 
all  an  1  every  its  equipments  and  appurtenances  whatsoever,  also 
all  and  everv  its  corporate  rights  and  franchises,  and  all  and  every 
right,  estate,  title,  interest,  property,  claim  and  demand  whatso- 
ever appertaining  to  or  in  any  wise  belonging  to  said  railroad,  and 
whereas  the  said  commissioners  did  duly  and  according  to  the 
directions  of  said  decree,  advertise  the  time  and  place  of  sale,  and 
did  on  the  22nd  day  of  June,  1S75,  expose  all  the  above  property, 
estate,  effects,  rights,  claims  and  demands,  to  sale  at  the  Court 
House  door  in  the  city  of  Salisbury,  to  the  highest  bidder,  at  pub- 
lic auction,  at  which  time  and  place  the  said  State  of  North  Car- 
olina became  the  purchaser  as  the  last  and  highest  bidder,  at  the 
price  of  $825,000.00,  and  whereas  the  said  commissioners  made 
one  report  of  their  action  in  the  premises,  to  said  Court,  which  on 
the  2nd  day  of  August,  1875,  rendered  a  decree  in  said  cause,  ap- 
proving and  confirming  in  all  respects,  said  report  and  directing 
the  said  Gaither,  Keogh  and  Ruffin,  whenever  the    said    State  of 


(ioo) 

North  Carolina  shall  have  paid  said  purchase  money  to  make  and 
execute  a  deed  to  the  said  State  for  all.  and  every  the  above  named 
property,  estate,  effects,  rights,  claims,  franchises,  interests  and 
demands;  and  whereas  the  State  of  North  Carolina  has  paid  to  the 
said  commissioners  in  the  manner  prescribed  in  the  last  mentioned 
decree  the  said  purchase  money,  and  every  part  thereof,  now  there- 
fore this  indenture  witnesseth  that  for  and  in  consideration  of  the 
premises,  and  in  pursuance  of  the  decree  of  said  Court,  the  said 
Gaither,  Keogh  and  Ruffin,  as  commissioners  of  said  Court,  have 
given,  granted,  bargained  and  sold,  and  do  hereby  give,  grant, 
bargain  and  sell  unto  the  said  State  of  North  Carolina  the  said 
Western  North  Carolina  Railroad,  extending  from  its  said  Eastern 
to  its  said  Western  terminus,  together  with  all  and  singular  its 
appurtenances,  rights,  franchises,  ways,  houses,  depots,  interests, 
tools,  machinery,  impliments,  claims,  demands,  and  all,  and  every 
thing  thereunto  belonging  or  in  any  wise  appertaining — to  have 
and  to  hold  the  same  to  the  said  State  of  North  Carolina,  and  her 
assigns  forever  in  fee  simple,  in  testimony  whereof  the  said  Gaith- 
er, Keogh  and  Ruffin,  as  commissioners  of  said,  have  hereunto 
set  their  hands  and  seals,  this  the  day  and  date,  first  above  written. 

Witness  : 
(Signed)     F.  C.  Clark. 

(Signed)  B.  S.  Gaither,  [Skal] 
(Signed)  Thos.  B.  Keogh,  [Seal] 
(Signed)     Thos.  Ruffin.     [Seal] 

$10,000.00.  Received  of  A  S.  Merrimon  for  amount  of  bid  for 
Western  North  Carolina  Railroad,  the  sum  of  $10,000.00.  being  the 
cash  payment  required  to  be  paid  by  him  as  purchaser  of  the  Wes- 
tern North  Carolina  Railroad,  (Eastern  Division,)  at  the  sale  of 
the  same  had  by  us  this  day  at  the  Court  House  door  in  Salisbury, 
N.  C,  under  a  decree  of  the  United  States  Circuit  Court,  in  the 
case  of  Henry  Clews,  and  others  against  the  Western  North  Car- 
olina Railroad,  and  others,  June  22nd,  1S75. 

(Signed)     B.   S.  Gaither, 
(Signed)     Thos.  B.  Keogh, 
(Signed)     Thos.  Ruffin, 
(Signed)     Marcus  Erwin, 

Commissioners. 

ENDORSEMENT  ON  BILL  OF  SALE. 
For  value  I  transfer  and    assign    the    within    mentioned    bid  to 


(IOI) 

Hons.  C.  H.  Brogden,  R.  F.  Armfield  and  Jas.  L.  Robinson,  com- 
missioners, &c,  to  purchase  said  within    named    road,    &c. 
June  22nd,  1875. 

(Signed)     A.  S.  Merrimon. 


DEED  OF  TRUST  BY  THE  STATE  TO  D.  A.   JENKINS,    18TH 
OCTOBER,   1875. 

This  indenture,  made  this  eighteenth  day  of  October,  eighteen 
I  hundred  and  seventy-five,  between  the  State  of  North  Carolina,  act- 
ing by  her  commissioners,  Curtis  H.  Brogden,  Governor  of  the  said 
State,  and  Robert  F.  Armfield  and  James  L.  Robinson,  of  the  first 
part,  and  David  A.  Jenkins,  trustee,  of  the  county  of  Gaston,  and 
State  of  North  Carolina,  party  of  the  second  part,  witnesseth  : 

Whereas,  On  the  thirteenth  day  of  March,   eighteen  hundred  and 
seventy-five  the  General  Assembly  of  the  said  State  of   North  Caro- 
lina did  pass  and  ratify  the  following  act,  to-wit : 
An   Act  in   relation  to  the    Western  North  Carolina  Railroad  : 

Section  I.  The  General  Assembly  of  North  Carolina  do  enact,  That  the 
Governor  ot  the  State  of  North  Carolina,  and  Robert  F.  Armfield  and  James  Act  of  13(.v 
L.  Robinson,  are  hereby  appointed  commissioners,  who  shall  purchase  the  March,  1875, 
Western  North  Carolina  Railroad  and  all  the  property  appertaining  thereto,  at 
a  sale  thereof,  to  be  made  under  a  decree  of  the  Circuit  Court  of  the  United 
States,  at  Greensboro,  in  the  Western  District  of  North  Carolina,  and  any 
claims  against  said  Western  North  Carolina  Railroad  Company,  which  may 
be  necessary  to  secure  to  the  State  of  North  Carolina  a  perfect  and  indefeasible 
title  to  the  said  Western  North  Carolina  Railroad  and  all  its  property  and 
franchises,  if  they  can  purchase  the  same  for  a  sum  not  exceeding  eight  hun- 
dred and  fifty  thousand  dollars,  and  to  pay  for  it  the  said  Governor,  Armfield 
and  Robinson,  commissioners,  are  hereby  freely  authorized  and  instructed  to 
issue  bonds  in  the  name  of  the  Western  North  Carolina  Railroad  Company, 
of  the  denomination  of  one  thousand  dollars,  bearing  interest  at  the  rate  of  sev- 
en per  centum  per  annum,  payable  semirannually,  and  due  at  fifteen  years  from 
date,  signed  by  the  chairman  and  countersigned  by  the  secretary  of  said  com- 
mission, and  sealed  with  the  seal  of  the  Company,  and  such  bonds  shall  be 
numbered  consecutively,  and  in  the  usual  form  of  mortgage  bonds,  and  the  cou- 
pons, after  maturity,  shall  be  receivable  in  payment  of  any  taxes  or  other  dues, 
to  the  State,  provided  said  bonds  shall  be  receivable  at  par  in  payment  for  the 
said  Railroad  property  and  franchises.  And  provided,  further,  that  if  said 
commissioners  shall,  upon   examination    into  the   affairs   of  the  said  Western 


(  I02) 

North  Carolina  Railroad  Company  be  of  opinion  that  the  sum  which  they  may 
be  required  to  pay  for  the  same  is  too  great,  or  that  claims  which  they  are  re- 
quired to  pay  are  fraudulent,  and  ought  not  to  be  paid,  then  in  their  discretion 
they  may  decline  said  purchase  and  report  the  matter  to  the  next  session  of  the 
General   Assembly. 

Sec.  II.  That  to  secure  the  payment  of  the  bonds  and  interest  as  the  same 
may  come  due,  the  commissioners  aforesaid  shall  have  the  right  and  power  to 
execute  and  deliver  mortgage  deeds  with  power  of  sale,  to  such  trustee  as  may 
be  selected  or  agreed  on,  the  same  to  be  signed  by  the  chairman  and  one  or 
both  of  the  other  commissioners,  conveying  such  Railroad  property  and  fran- 
chises, including  road  bed,  superstructure,  equipment,  and  all  its  real  and  per- 
sonal estate,  and  said  deed  or  deeds,  when  duly  executed,  mav  be  recorded  in 
the  register's  office  in  Rowan  County,  and  its  registration  in  that  county  shall 
be  deemed  an  effectual  and  sufficient  registration  for  all  purposes,  and  shall 
give  it  priority  over  all  claims  against  said  railway  property,  and  it  shall  not 
be  necessary  to  register  the  same  in  .any  other  county,  any  law  to  the  contrary 
notwithstanding  ;  Provided,  That  no  sale  under  the  mortgage  or  mortgages 
herein  provided  for,  shall  be  made  by  virtue  of  any  decree  of  foreclosure  with- 
out first  having  given  six  months  notice  thereof  by  public  advertisement  in  six 
newspapers  of  the  largest  circulation  in  the    State. 

Seo.  III.  That  if  the  Governor,  and  said  A.r  afield  and  Robinson  shall  pur- 
chase said  road,  it  shall  be  the  duty  of  the  Governor,  by  and  with  the  advics 
and  consent  of  the  Senate,  to  appoint  three  commissioners  who  shall  manage 
said  road  and  its  affairs  daring  the  pleasure  of  the  General  Assembly,  and  to 
build  and  complete  the  same  to  its  termini,  at  Paint  Rock,  and  the  Georgia  or 
Tennessee  line,  near  Ducktowu,  according  to  the  charter  of  said  Western  North 
Carolina  Railroad  company,  and  the  acts  amendatory  thereof.  They  shall  have 
the  power  to  appoint  necessary  officers  to  operate  and  manage  said  road,  and 
keep  the  same  in  repair.  They  shall  require  true  and  accurate  accounts  to  be 
kept  of  all  the  earnings,  income  and  expenses  of  said  road,  and  make  semi-an- 
nual reports  to  the  Governor  of  such  accounts,  and  of  their  actings  and  doings, 
and  they  shall  semi-annually  pay  into  the  treasury  except  as  may  be  hereafter 
provided  all  the  net  earnings  and  income  of  said  road,  and  the  treasurer  shall 
keep  an  accurate  account  of  all  sums  of  money  so  paid  in  and  note  the  same  in 
his  report  to  be  submitted  to  the  General  Assembly.  The  said  commissioners 
before  entering  upon  their  duties  herein  provided  for,  shall  execute  a  bond  pay- 
able to  the  State  of  North  Carolina,  (which  shall  be  approved  by  the  Governor,) 
in  such  sum  as  may  be  necessary  to  secure  the  State,  but  in  no  case  shall  said 
bond  be  less  than  double  the  amount  of  the  net  earnings  for  the  preceding  year. 
Provided  that  no  person  shall  be  appointed  commissioner  who  has  been  connec- 
ted with  any  fraudulent  transaction  in  connection  with  any  of  the  railroads'  or 
other  public  works  uf  this  State. 

Seo.  IV.  That  the  public  treasurer  shall  on  demand  after  maturity  pay  out 
of  the  moneys  received  from  said  railroads  the  interest  upon  the  bonds  authoriz- 
ed by  this  act,  and  if  at  any  time  there  shall  not  be  sufficient  funds  on  hands  to 
fully  discharge  such  interest,  then  he  shall  pay  such   deficit  out  of  the   general 


(  i°3  ) 

funds,  keeping  an  accurate  account  of  the  advances  so  made,  which  shall  be  a 
lien  upon  the  railroad,  and  all  its  property,  second  only  to  the  mortgage  herein- 
before provided  for. 

Seo.  V.  That  upon  a  reorganization  of  the  company  under  this  act,  the  State 
of  North  Carolina  shall  be  assigned  three-fourths  of  the  stock,  and  the  private 
stockholders  one-fourth  of  the  stock  under  such  regulations  for  apportionment 
of  the  private  stock  as  the  commissioners  may  prescribe.  That  after  such  or- 
ganization the  number  of  commissioners  shall  be  increased  to  tour,  one  of  whom 
shall  be  elected  by  the  private  stockholders  in  such  manner  as  the  commissioners 
hereinbefore  provided  for,  shall  prescribe.  Provided  that  the  State  of  North 
Carolina  shall  in  all  meetings  of  the  stockholders  have  a  voice  equal  to  the  am- 
ount of  the  stock  assigned  to  the  State  by  the  provisions  of  this  Act. 

Seo.  VI.  That  the  commissioners  provided  for  in  this  act,  shall  have  such 
convicts  as  are  not  necessary  for  completing  the  Penitentiary  for  laborers  upon  the 
unfinished  portion  of  the  Western  North  Carolina  Railroad,  as  they  may  require, 
and  may  use  such  portion  of  the  net  earnings  of  the  road  in  its  construction  as 
they  may  deem  proper.  And  provided  further,  that  one  half  of  the  net  earn- 
ngs  of  said  road  shall  first  be  applied  to  the  payment  of  the  coupons  upon  the 
bonds,  and  that  said  net  earnings  shall  be  deposited  in  the  State  treasury  for 
that  purpose.  Provided,  that  they  shall  have  no  power  to  create  any  lien,  or 
other  debt  upon  said  railroad,  or  against  the  State  without  express  authority 
from  the  General  Assembly. 

Seo.  VII.  That  no  change  of  location,  or  operation  of  said  railroad  within 
Catawba  county,  shall  be  made  to  impair  existing  rights  of  the  town  of  New- 
ton, and  it  shall  be  lawful  for  an}'  criminal  not  guilty  of  a  capital  offence  to  be 
sentenced  to  labor  on  said  railroad. 

Sec.  VIII.     That  this  act  be  in  force  from  and  after  its  ratification. 

Ratified  the  13th  day  of  March,  A.  D.,  1875. 

And  whereas  the  said  commissioners,  Curtis  H.  Brogden, 
Governor  of  the  State  of  North  Carolina,  Robert  F.  Armfield  and 
James  L.  Robinson,  in  execution  of  their  duties  under  the  above 
recited  act,  did  on  the  seventeenth  day  of  April,  1S75,  purchase 
from  the  parties  holding  the  same  all  claims  against  the  Western 
North  Carolina  Railroad  company,  which  it  was  necessary  for 
them  to  purchase,  in  order  to  secure  to  the  said  State  of  North 
Carolina  a, perfect  and  undefeasible  title  to  the  said  the  Western 
North  Carolina  Railroad,  and  all  its  property  and  franchises,  said 
claims  being  all  the  mortgage  bonds,  and  debts  of  the  said  the 
Western  North  Carol. na  Railroad  company,  upon  which  was 
founded  a  decree  of  foreclosure  and  sale  of  the  said  the  Western 
North  Carolina  Railroad,  in  the  Circuit  Court  of  the  United  States 
for  the  Western  District  of  North  Carolina,  in  the  cause  entitled 
Hiram  Sibley,    Henry    Clews,  and    others,  against  the    Western 


(io4) 

North  Carolina  Railroad  company,  Tod  R.  Caldwell  and  others, 
thereby  acquiring  entire  control  of  the  said  decree  of  foreclosure, 
and  sale,  and  the  power  to  buy  the  said  road,  at  the  sale  thereof, 
under  the  said  decree,  and  pay  the  entire  purchase  money  therefor, 
with  the  claims  so  purchased  on  the  said  seventeenth  day  of  April, 
1875.  And  whereas  the  said  commissioners,  Curtis  H.  Brogden, 
Governor  of  the  State  of  North  Carolina,  and  Robert  F.  Armfield 
and  James  L.  Robinson,  upon  their  said  purchase  of  the  said  claims 
so  made  as  aforesaid  on  the  seventeenth  day  of  April,  187=},  in  pur- 
suance of  the  powers  upon  them  conferred  in,  under,  and  by  the 
above  recited  Act  of  the  General  Assembly  of  the  State  of  North 
Carolina,  did  agree  to  execute,  and  deliver,  and  have  since  execu- 
ted, and  delivered  to  the  holders  of  the  said  claims  against  the  said 
the  Western  North  Carolina  Railroad  company,  so  purchased  as 
aforesaid  on  the  seventeenth  day  of  April,  187:;,  eight  hundred 
and  fiftv  bonds,  in  the  name  of  the  said  the  Western  North  Caro- 
lina Railroad  company,  of  the  denomination  of  one  thousand  dol- 
lars, each  numbered  consecutively,  from  one  (1)  to  eight  hundred 
and  fifty  (850),  bearing  interest  at  the  rate  of  seven  per  centum, 
per  annum,  payable  semi-annually  on  the  first  day  of  May  and  No- 
.  vember  in  each  year,  bearing  date,  the  first  day  of  May,  eighteen 
hundred  and  seventy-five,  due  and  payable  fifteen  years  after  and 
from  the  date  thereof,  signed  by  the  Chairman,  and  countersigned 
by  the  Secretary  of  the  said  commissioners,  and  sealed  with  the 
coi-porate  seal  of  the  said  the  Western  North  Carolina  Railroad 
Company,  which  bonds  are  in  the  form  following,   that  is  to  say  : 

State  of  Nobth  Caeolina, 

$1,000.  United    States    of    Ameeica.  $1,000. 

No. No. 

Mort^'e  bond.  Western  North  Carolina  Eailroad  Company, 

First  Mortgage  Bond. 
Coupons  receivable  by  the  State  of  North  Carolina  in  payment  for  taxes  and 

State  dues. 
It  is  hereby  acknowledged  and  declared  by  the  Western  North  Carolina  Rail- 
road company,  and  by  the  State  commissioners  hereinafter  named  that  the  said 
the  Western  North  Carolina  Railroad  company,  as  re-organized  or  to  be  re-or- 
ganized pursuant  to  the  Act  of  the  General  Assembly  of  North  Carolina,  entitled 
an  Act  in  relation  to  the  Western  North  Carolina  Railroad,  ratified  March  13th, 
1875,  is  indebted  to  the  bearer  hereof  in  the  sum  of  one  thousand  dollars  for  part 
of  the  purchase  money  of  the  Western  North  Carolina  Railroad,  and  all  the  pro- 
perty appertaining  thereto,  and  of  the  claims  against  said  company  necessary  to 


secure  to  the  State  of  North  Carolina  a  perfect  and  Indefeasible  title  to  the  said 
railroad,  and  all  its  property  and  franchises  upon  the  purchase  of  the  same  by 
the  Governor  of  the  State  of  North  Carolina,  and  Robert  F.  Arnifield  and  James 
L.  Robinson,  as  commissioners,  under  and  in  accordance  with  said  Act  of  the 
General  Assembly,  this  bond  having  been  received  at  par  in  payment  for  such 
railroad,  property  and  franchises,  upon  such  purchase. 

And  in  pursuance  of  said  Act  the  Western  North  Carolina  Railroad  company 
hereby  promises  to  pay  to  the  bearer  hereof  said  sum  of  one  thousand  dollars  on 
the  first  day  of  May,  eighteen  hundred  and  ninety,  and  meanwhile  to  pay  the 
interest  thereon  from  the  date  hereof  semi-annually  on  the  1st  day  of  May  and 
November  in  each  year  at  the  rate  of  seven  per  cent,  per  annum  to  the  bearer  of 
the  coupons  thereof,  bearing  the  engraved  signature  of  the  Governor  and 
Chairman  hereto  annexed  upon  presentation  and  surrender  of  such  coupons, 
such  principal  and  interest  to  be  paid  at  the  Treasurer's  office  of  the  State  of 
North  Carolina,  at  Raleigh,  North  Carolina,  and  it  is  hereby  declared  in  pur- 
suance of  said  Act  that  such  interest  coupons  after  maturity  shall  be  receivable  in 
payment  of  any  taxes  or  other  dues  to  the  State  of  North  Carolina. 

The  payment  of  this  bond  and  interest,  with  other  similar  ones,  to  an  aggre- 
gate amount,  not  exceeding  eight  hundred  and  fifty  thousand  dollars  of  princi- 
pal, is  secured  in  accordance  with  said  ac*  of  the  General.  Assembly,  by  mort- 
gage deed,  with  power  of  sale  to  David  A.  Jenkins,  as  trustee,  conveying  such 
Railroad,  property  and  franchises,  including  road  bed,  superstructure  and 
equipments,  and  all  the  real  and  personal  estate  of  said  Railroad  Company, 
duly  executed  and  recorded  in  the  register's  office  in  Rowan  county,  agreeably 
to  said  act. 

In  witness  whereof,  in  pursuance  of  said  act  of  the  General  Assembly,  the 
corporate  seal  of  the  said  the  Western  North  Carolina  Railroad  Company  is 
hereunto  affixed,  and  this  bond  is  signed  by  the  Governor  of  the  State  of  North 
Carolina,  as  chairman,  and  countersigned  by  the  secretary  of  the  commission 
appointed  by  the  said  act  of  the  General  Assembly,    the  first  day  of  May,  1875. 

[Corporate  Seal  of  The  W.  N.  C.  R.  R.  Co.]        C.  H.  Brogden, 

Governor  of  North  Carolina  and  Chairman  of  Commission. 

R.  F.  Armfield,  Secretary  of  Commission. 

And  the  coupons  attached  to  the  said   bonds   are   of  the   form   fol  • 
lowing,  that  is  to  say  : 

On  the  1st  day  of  18  the  Western  North  Carolina  Railroad 
Company,  reorganized  under  act  of  March  13th,  1875,  w^l  pay  the  bearer  at 
the  Treasury  of  the  State  of  North  Carolina  thirty-five  dollars,  being  for  semi- 
annual interest  on  bond  No. This  coupon,  after  maturity,    is    receivable 

at  par  in  payment  of  any  taxes  or  other  dues  to  the  State  of  North  Carolina. 

C.  H.  Brogden, 

Governor  and  Chairman. 

And  the  trustees'  certificate  endorsed  on  said  bonds  is  in  the  form 
following,  that  is  to  say  : 
I  certify  that  the  within  is  one  of  the  bonds  secured  by  the  within  mentioned 


(io6) 

mortgage  to  me  as  trustee,  executed  and  recorded  as  therein  mentioned. 

D.  A.  Jenkins,  Trustee. 

And  whereas,  In  farther  execution  of  their  duties,  under  the  said 
act,  the  said  commissioners  did,  on  the  twenty- second  day  of  July, 
1875,  at  the  town  of  Salisbury,  in  the- said  State  of  North  Caroline, 
purchase  the  said  the  Western  North  Carolina  Railroad,  and  all  the 
property  appertaining  thereto,  at  a  sale  therof,  made  under  said  de- 
cree of  the  Circuit  Court  of  the  United  States,  for  the  Wesern  Dis- 
trict of  North  Carolina  ; 

And  whereas,  Said  sale  and  said  purchase  of  the  said  the  Western 
North  Carolina  Railroad  and  nil  its  property  an  1  fr  tnchises  were 
duly  reported  to  the  said  the  Circuit  Court  of  the  United  States,  at 
Greensboro,  North  Carolina,  by  the  commissioners  appointed  by  the 
said  Court  to  make  said  sale ; 

And  whereas,  Said  sale  and  purchase  were  in  all  things  confirmed 
by  the  said  Court,  and  by  an  order  of  the  said  Cmrt  the  said  com- 
missioners, Curtis  H.  Brogden,  Governor  of  the  State  of  North  Car- 
o  ina,  Robert  F.  Armfield  and  James  L.  Robinson,  were  permitted 
and  allowed  to  pay,  and  under  said  order  did  actually  pay,  the  whole 
of  the  purchase  money  for  said  Railroad,  with  the  claims  so  pur- 
chased by  them  on  the  said  seventeenth  day  of  April,  1875  ; 

And  whereas,  Burgess  S.  Gaither,  Thomas  B.  Keogh  and  Thomas 
Ruffin,  commissioners  of  the  sail  Court,  were  ordered  by  the  said 
Court  to  execute  an  1  deliver  to  the  said  State  of  North  Carolina,  a 
deed  conveying  to  the  said  State,  in  fee  simple,  the  said  Western 
North  Carolina  Railroad  and  all  its  property  and  franchises ; 

And  whereas,  The  said  Burgess  S.  Gaither,  Thomas  B.  Keogh 
Deed  to  state.  and  Thomas  Rutfin,  in  execution  of  the  said  last  mentioned  order  of 
the  said  Court  did,  on  the  third  day  of  August,  eighteen  hundred 
and  seventy-five,  execute  and  deliver  to  the  said  State  of  North  Car- 
olina, through  her  said  commissioners,  Brogden,  Armfield  and  Rob 
ins  >n,  a  deed  conveying  to  the  said  State  of  North  Carolina,  the  said 
Western  North  Carolina  Railroal,  and  all  its  property  and  fran- 
chises, in  fee  simple,  by  virtue  of  which  deed  the  siid  State  became, 
and  now  is  the  owner  in  fee  of  the  sad  the  Western  North  Carolina 
Railroad  and  all  its  property  and  franchises. 

Now,  therefore,  this  indenture  witnesseth,  that  in  consideration  of 
the  premises  and  for  the  purpose  of  securing  the  payment  of  the 
sums  of  money  mentioned  and  provided  in  the  bonds  above  described 


(io7) 

and  issued,  as  aforesaid,  by  the  said  commissioners,  Brogden,  Arm 
field  and  Robinson,  and  the  interest  thereon,  according  to  the  true 
intent  and  meaning  thereof,  and  in  consideration  of  the  sum  of  ten 
dollars  to  the  party  of  the  first  part,  in  hand  paid  by  the  party  of 
qhe  second  part,  the  receipt  whereof  is  hereby  acknowledged,  and 
in  exe  ution  of  the  powers  and  duties  conferred  and  imposed  by 
the  above  mentioned  act  of  the  General  Assembly  of  the  State  of 
North  Carolina,  the  party  of  the  first  part  acting  by  and  through  her 
aforesaid  commissioners,  Brogden,  Armfield  and  Robinson  hath 
granted,  bargained,  sold,  aliened,  transferred  and  conveyed,  and  by 
these  presents  doth  grant,  bargain,  sell,  alien,  transfer  and  convey 
to  the  said  party  of  the  second  part,  and  his  successors  and  succes 
sor,  in  the  trust,  and  to  the  assignees  of  him.  the  said  party  of  the 
second  part,  and  to  the  assigns  of  his  successor  or  successors,  to 
him  and  them  in  trust,  all  and  singular,  the  said  Railroad,  of  the 
party  of  the  first  part,  known  and  designated  as  the  Western  North 
Carolina  Railroad,  including  its  Eastern  and  Western   Divisions,  ex 

°  Propertv   con- 

tending from  its  Eastern  terminus,  in  the  town  of   Salisbury,  North  veyed  to  state, 
_.       ,.°  .    ,      .  ,  ,»,.„..  both  Divis'ns. 

Carolina,  to  a  point  at  or  near  the  town  of  Asheville,   in   the  county 

of  Buncombe,  in  the  said  State,  extending  thence  to  Paint  Rock,  on 
the  line  between  the  Scates  of  North  Carolina  and  Tennessee,  also 
another  line  of  said  Railroad  extending  from  said  point  at  or  near 
the  town  of  Asheville,  in  the  county  of  Buncombe,  aforesaid,  to 
Ducktown,  in  the  county  of  Cherokee,  in  said  State  of  North  Caroli- 
na, being  (all  the  said  lines  together.)  about  three  hun- 
dred miles  in  length,  including  all  the  Railways,  ways,  rights 
of  way,  depot  grounds,  and  all  other  lands,  all  tracts,  bridges, 
viaducts,  culverts,  fences,  and  other  structures,  all  depot  station 
houses,  engine  houses,  car  houses,  freight  houses,  wood  houses 
and  other  buildings,  and  all  machine  shops  and  other  shops,  which 
are  now  held  or  which  may  hereafter  be  acquired  for  use  in  con- 
nection with  the  above  described  railroad,  including  also  all  loco- 
motives, tenders,  cars  and  other  rolling  stock  or  equipment  and  all 
machinery,  tools,  implements,  fuel  and  material  for  constructing, 
operating,  repairing,  replacing  or  extending  the  said  railroad  or 
any  part  thereof,  and  any  and  all  its  equipments  or  appurtenances 
whether  now  held  or  hereafter  to  be  acquired,  and  also  all  the  im- 
provements and  additions  made  or  to  be  made  to  any  and  all  of  the 
said  properties,  estates,  railroads,  railways  and  their  appurtenances 


(  i<>8  ) 

by  the  said  party  of  the  first  part  or  others,  also  all  property,  right; 
title  and  interest,  which  the  party  of  the  first  part  hath  heretofore 
acquired  or  may  hereafter  acquire  in  and  to  any  and  all  of 
the  property  above  described  together  with  all  corporate 
franchises,  already  acquired,  and  which  may  be  hereafter 
acquired,  which  are  necessary  and  proper  to  enable  the  party 
of  the  second  part  and  his  successors  in  the  trust,  and  his 
and  their  assigns  to  have,  hold,  possess,  use,  enjoy,  repair, 
build,  and  operate  said  line  or  lines  of  railway,  and  every  part 
thereof,  together  with  all  and  singular  the  tenements,  hereditaments, 
appurtenances,  franchises,  and  rights  thereunto,  belonging  or  in 
anywise  appertaining  with  the  tolls,  incomes,  rents,  and  profits 
thereof — to  have  and  to  hold  said  property  above  described  unto 
the  said  party  of  the  second  and  to  his  successor  or  successors,  and 
to  the  assigns  of  him  the  said  party  of  the  second  part,  and  to  the 
assigns  of  his  successor  or  successors  in  the  trust  to  the  onlv  proper 
use,  benefit  and  behoof  of  the  said  party  of  the  second  part,  and 
his  successor  or  successors  in  the  trust,  and  to ,  his,  and  to  their 
as  igns. 

In  trust  nevertheless,  to  have  and  to  hold  the  same  upon  the  uses 
and  conditions,  and  for  the  purposes  hereinbefore  mentioned,  and 
,'r     hereinafter  expressed  as  follows,  that  is  to  say  : 

The  State    to      ARTICLE  FIRST.     Until  default  be  made  in  the  payment  of  the  principal 
have    posses-         .  ,',-.,"..'--.-■,  ■, 

>  on  and  con-  or  interest  of  the  bonds  herein  intended  to  be  secured  or  some  or  any  of  them, 

lekure.  f°r"  or  unt*'  default  shall  be  made  in  respect  to  some  tilings  in  these  presents  required 
to  be  done  by  the  said  party  of  the  first  part — said  party  of  the  first  part  shall  be 
permitted  to  possess,  manage,  control,  and  enjo3r  the  said  above  described  rail- 
road, and  all  the  property  hereinbefore,  and  hereby  conveyed,  and  to  take  and 
use  the  is?ues,  yields,  income  and  profits  thereof,  in  the  same  manner  as  if  this 
deed  had  not  been  made. 

ARTICLE  SECOND.  In  case  default  shall  be  made  in  the  payment  of  any 
half  year's  interest  on  any  of  the  aforesaid  bonds  herein  secured  at  the  time,  and 
"In  the  manner  in  the  said  coupons  issued  with  said  bonds,  required,  (the  said 
coupons  having  been  first  presented  for  payment  at  the  office  of  the  Treasurer  of 
the  State  of  North  Carolina,  in  the  city  of  Raleigh,  in  the  said  State  of  North 
Carolina,  and  the  payment  of  the  interest  due  having  been  there  specifically 
demanded),  and  in  case  such  default  shall  continue  for  the  period  of  three 
months  after  such  demand,  then  and  thereupon  the  principal  of  all  the  bonds 
hereby  secured  shall  become  immediately  due  aud  payable  of  anything  in  the  said 
bond  contained  to  the  contrary  notwithstanding. 

ARTICLE  THIRD,  It  is  hereby  further  agreed  that  in  case  of  any  default 
as  mentioned  in  the  last  above  article  in  the  payment   of  any   interest    due  on 


(  io9  ) 

anv  of  the  above  mentioned  bonds  for  three  months  after  payment  of  the  same 
shall  have  been  demanded  at  the  office  of  the  Treasurer  of  the  State,  in  the  city 
of  Raleigh,  North  Carolina,  and  in  case  of  the  default  in  the  payment  Of  the  prin- 
cipal of  any  of  the  said  bonds  after  the  same  shall  become  due  and  payable 
either  by  lapse  of  time  or  failure  to  pay  interest  as  aforesaid,  and  for  three 
months  after  the  same  being  so  due  and  payable  shall  have  been  demanded 
at  the  said  office  of  the  said  Treasurer  of  the  State  of  North  Carolina,  at  the 
city  of  Raleigh,  in  said  State,  it  shall  then,  and  in  either  event,  be  the  duty  of 
the  said  party  of  the  second  part,  and  any  of  his  successors  in  the  trust,  and  he 
and  they  are  hereby  required,  being  thereunto  requested  by  the  holder  or  owner 
of  any  of  the  said  bonds- or  coupons  so  due  and  unpaid,  after  demand,  as  afore- 
said, to  enter  upon. and  take  possession  of  the  said  Railroad  and  all  of  its  appur- 
tenances, and  all  the  property  and  effects  herein  conveyed,  and  he  or  they  shall 
immediately  advertise  a  sale  of, said  Railroad,  and  all  its  property  and  franchises 
and  all  the  property  herein  conveyed,  in  six  newspapers  of  the  largest  circula- 
tion in  the  State  of  North  Carolina,  which  advertisement,  he  or  they  shall  con- 
tinue for  six  months,  and  at  the  end  of  the  said  six  months  he  or  they  shall  sell 
the  said  Railroad  and  all  its  property  and  franchises,  and  all  the  property  here- 
in convej^ed,  at  public  auction  to  the  highest  bidder,  for  cash,  at  the  town  of 
Salisbur}',  in  the  State  of  North  Carolina,  and  the  said  party  of  the  second  part 
or  his  successor  or  successors,  after  he  or  they  shall  have  sold  said  Railroad 
and  appurtenances,  are  hereby  authorized  and  empowered  to  execute  to  the 
purchaser  or  purchasers  thereof,  good  and  sufficient  deed  or  deeds  of  convey- 
ance of  the  same,  granting  and  conveying  to  the  said  purchaser  or  purchasers 
all  such  entire  estate,  right,  title,  property,  interest  and  franchises,  and  to  the 
same  extent  as  the  said  party  of  the  first  part  had  therein,  at  the  date  of  such 
sale,  and  also  good  and  sufficient  assignment  of  all  personal  property,  rights 
and  franchises  of  and  pertaining  to  said  Railroad,  and  out  of  the  money  arising 
from  said  sale  it  shall  be  the  duty  of  the  party  of  the  second  part,  and  his  suc- 
cessor or  successors,  after  first  retaining  therefrom  the  cost  of  executing  this 
trust,  and  all  unreimbursed  sums  of  money  which  he  or  his  successor  or  succes- 
sors may  have  been  obliged  to  pay,  by  reason  of  taking  possession  of 
and  operating  the  said  premise,  and  a  reasonable  allowance  for  his 
or  their  own  services,  and  for  legal  professional  advice  in  the 
premises,  then  to  pay,  in  so  far  as  such  proceeds,  including  any  moneys 
which  may  have  arisen  or  accrued  from  running  and  operating  said  Road  or 
managing  the  property  herein  conveyed,  and  which  may  have  come  into 
the  hands  of  the  said  party  df'the  second  part  or  his  successor  or  successors,  may 
suffice  therefor,  and  i  <  equal  pro  rata  proportion  in  case  of  deficiency  the  princi- 
pal and  interest  then  due,  which  shall  then  remain  unpaid  on  the  bonds  afore- 
said outstanding  and  hereby  secured  as  aforesaid  for  the  benefit  of  and  to  be 
paid  to  the  holders  thereof  with  pro  rata  equality,  and  then  further  to  restore 
the  residue  of  said  proceeds  if  any  there  shall  be  to  the  said  party  of  the  first 
part ;  and  it  is  hereby  expressly  agreed  that  the  said  bonds  herein  and  hereby 
•secured  shall  be  rateably  receivable,  if  it  be  so  desired  by  the  holders  thereof,  in 
-payment  of  the  purchase  money  arising  upon  and  from  said  sale  to  the  extent 


(no) 

of  the  amount  of  the  net  proceeds  <>f  said  sale  properly  applicable  to  the  pay 
ment  of  said  bond  or  bonds  respectively,  and  the  said  sale  when  fully  con  gum* 
mated  shall  be  a  perpetual  bar  at  law  and  in  equity  to  and  against  the  said  par- 
ty of  the  first  part  and  all  persons  claiming  under  or  through  said  party  of  the 
first  part. 

ARTICLE  FOURTH.     The  party  of  the  first  part  shall  and  will  from  time 
to  time,  and  as  often  as  thereto  requested  by  the  party  of  the  second  part  and 
his  successor  or  successors  in  the  trust,  and  whenever  the  same  shall   be  proper 
or  necessary  make  and  deliver  to  the  said  party  of  the  second  part  and  his  suc- 
cessor or  successors  such   deeds  and  conveyances  and  further  assurances  in  law 
as  may  be  requisite  for  the  better  carrying  out  the  trusts  herein  expressed,  and 
for  the  more  effectual  conveyance  to  the  said  party  of  the  second  part  and  his 
successor  or  successors  a  better  and  more  perfect  title  to  any  and  all  the  proper- 
ty herein  and  hereby  conveyed  or  attempted  or  intended  to  be  conveyed. 
Deed  to|be  void    ARTICLE  FIFTH.     If  the  said  party  of  the  first  part  shall  well  and  truly 
tions  are°per-  Pay  or  cause  to  De  Pa-d  the  principal  of  said  bonds  and  eacb  and  all  of  them, 
formed.  an(j  an  interest  thereon,  as  and  when  the  same  shall  become  due  and  payable 

according  to  the  tenor  of  said  bonds  and  the  coupons  issued  therewith,  and  shall 
perform  and  keep  all  and  singular  the  several  things  herein  required  to  be  per- 
formed and  kept  according  to  the  true  intent  and  meaning  of  these,  presents 
then  and  in  that  case  all  the  estate,  right,  title  and  interest  of  thy  said  party  of 
the  second  part  and  his  successor  and  successors  in  the  trust  hereby  created  and 
in  and  to  ad  and  singular  the  property  herein  a  id  hereby  conveyed  shall  cease, 
determine  and  become  void,  otherwise  the  same  shall  remain  in  full  force  and 
effect. 

ARTICLE  SIXTH.  In  case  of  a  vacancy  in  the  office  of  trustee  arising  or 
existing  from  death,  disability,  refusing  to  act,  or  from  any  other  cause,  or  in 
case  the  trustee,  for  the  time  being,  shall  refuse  or  neglect  to  carry  out  the  pro- 
visions of  this  trust  or  any  of  them,  it  shall  be  the  duty  of  the  Governor,  of  the 
State  of  North  Carolina  for  the  time  being,  he  being  thereunto  requested  in  wri- 
ting by  the  holder  of  any  bond  or  coupon  herein  or  hereby  secured,  to  appoint  a 
new  trustee,  removing  the  incumbent,  if  there  be  one,  refusing  or  neglecting  to 
act,  or  incompetent  to  act,. and  any  such  subsequently  appointed  trustee  shall 
have  all  the  rights  and  powers  and  perform  all  the  duties  of  the  party  herein 
named  as  the  party  of  the  second  part,  and  shall  hold  all  the  property  herein 
and  hereby  conveyed  for  the  purposes  specified  in  this  deed,  and  shall  have  all 
rights  of  sale  and  conveyance  in  as  full  and  ample  a  manner  as  if  he  were  a  par- 
ty to  this  deed  in  the  room  and  stead  of  the  party  herein  named  as  the  party  of 
*  the  second  part. 

In  witness  whereof  we,  the  said  Curtis  H.  Brogden,  Governor  of  the  State  of 
North  Carolina,  and  chairman  of  said  commission,  and  Robert  F.  Armfield  and 
James  L.  Robinson,  Commissioners  acting  for  and  in  behalf  of  the  said  State  of 
North  Carolina,  and  under  and  by  the  authority  of  the  above  recited  act  of  the 
General  Assembly  of  the  State  of  North  Carolina  have  hereunto  set  our  hands 
and  seals  the  day  and  year  first  above  written,  and  have  caused  the  corporate 


(Ill) 

seal  of  the  said  the  Western  North  Carolina  Rail  Road  Company  to  be  hereunto 

affixed. 

Signed,  sealed  and  delivered  in  the  presence  of 

C.  H.  Beogden,     [Seal.] 

Governor  and  Chairman. 
[L.  S.]  R-  F.  Akmfield,    [Seal.] 

Commissioner. 

North  Carolina,  Wake  County— Probate  Court. 

The  execution  of  the  foregoing  mortgage  was  this  day  duly  acknowledged  be- 
fore me,  J.  N.  Bunting,  Probate  Judge,  with  the  seal  of  the  Western  North  Car- 
olina Railroad  Company,  by  C.  H.  Brogden,  Governor  and  Chairman,  for  the 
purpose  therein  set  forth. 

Witness  my  hand  and  the  seal  of  the  Court,  at  office  in  the  city  of  Raleigh, 
October  18th,  1875. 

[L.  S.]  J-  N.  Bunting, 

Probate  Judge. 

North  Carolina,  Iredell  County — Probate  Court. 

The  execution  of  the  foregoing  mortgage  was  this  day  duly  acknowledged  be- 
fore me,  J.  B.  Connelly,  Judge  of  Probate,  by  R.  F.  Armfield,  one  of  the  Com- 
missionesr,  whose  name  appears  thereto  for  the  purposes  therein  expressed. 

Witness  my  hand  and  the  seal  of  the  Court,  at  office  in  Statesville,  October 
26th,  1875. 

[L.  S.]  J.  B    Connelly, 

Probate  Judge. 

State  of  North  Carolina,   County  of  Gaston  : — 6"5. 

I,  David  A.  Jenkins,  the  Trustee  named  in  the  foregoing  deed  of  trust  and ' 
mortgage,  do  hereby  signify  my  acceptance  of  the  said  office  of  Trustee,  with  all 
the  powers,  and  duties,  and  for  the  purposes  of  the  said  foregoing  deed  of  trust 
and  mortgage  as  therein  expressed  and  contained. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  seal  this  twenty-seventh 
day  of  October,  eighteen  hundred  and  seventy -five,  in  presence  of  S.  Thompson. 

'D.  A.  Jenkins.     [L.  S.] 

State  of  North  Carolina,  Mecklenburg-  Countv. 

Personally  appeared  before,  J.  R.  Erwin,  Clerk  of  the  Court  and  Probate 
Judge,  in  and  for  the  county  and  State  aforesaid,  David  A.  Jenkins  and  ac- 
knowledged his  signature  to  the  foregoing  mortgage  deed  for  the  purposes  set 
forth  therein. 

In  testimony  whereof  I  hereunto  set  my  hand  and  official  seal  at  office  in 
Charlott   t  as  October  27th,  1875. 

[L.  S.]  J.  R.  Eewin, 

Clerk  Superior  Court  and  Probate  Judge. 

State  of  North  Carolina,  Rowan  county  : 
I,  John  M.  Horah  Judge  of  Probate  for  said  county,  do  adjudge  that  the  fore- 


(112) 

going  deed  in  trust  has  been  duly  acknowledgd.  Therefore,  let   the  same,  with 
the  annexed  certificate  be  registered,  October  28th,  1875. 

J.  M.  Hoeah,  Probate  Judge. 
Came  to  hand  the  28th  day  of  October,  A.  D.,  1875,    at  10  A.  M.,  and  regis- 
tered. Horatio  N.  Woodson, 

Register  of  Deeds. 

State  of  Noeth  Carolina,  Rowan  County. 

I,  Horatio  N.  Woodson,  Register  of  Deeds  in  and  for  the  coumy  aforesaid,  do 
hereby  cartify  that  the  foregoing  contains  a  true  copy  of  a  mortgage  made  by 
the  State  Commissioners,  C.  H.  Brogden,  Governor,  R.  F.  Armfield  and  James 
L.  Robinson,  to  David  A  Jenkins,  Trustee,  said  mortgage  registered  in  Book 
No.-  51  of  the  Register  of  Deeds,  office  for  Rowan  county,  page  1,  &c. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  private  seal,  having  no 
seal  of  office,  this  April  28th  1881. 

Hobatio  N.  Woodson,     [Seal] 

Register  of  Deeds. 

State  of  Noeth  Caeolina,  Rowan  County  : 

I,  John  M.  Horah,  Clerk  of  the  Superior  Court,  of  Rowan  County,  do  hereby 
certify  that  Horatio  N.  Woodson  is  Register  of  Deeds,  in  and  for  said  county, 
and  that  his  name  to  the  foregoing  certificate  is  in  his  proper  hand  writing. 

Witness  my  hand  and  the  seal  of  said  Court,  this  the  29th  day  of  April,  A.  D., 
1881.  J-  M.  Hoeah,   Clerk. 


(»3) 


("4) 


l**s) 


RECORD  OF  THE  HIRAM  KELLY  SUIT. 


State  of  North  Carolina,)   Fifth  Monday  after  the  4th  Mon- 
'  McDowell  County.  >  day  in  June,  i860,  being  the  30th 

)    day  of  July  in  said  year. 

Be  it  known  that  a  Court  of  Pleas  and  Qaurter  Sessions  was  op- 
ened and  held  for  the  county  aforesaid  at  the  Court  House  in  Ma- 
rion :     Present  and  presidingthe  worshipful  Justices,  (to-wit  :) 

John  S.  Brown,  Chairman. 
Swan  P.  Burnett. 
Thos.  J.  Hallyburton. 
At  which  said  term  the  following  proceedings  were  had  and  done: 
At  said  term  a  petition  was  returned  into  Court  in  the  following 
words  and  figures,  (to-wit  :) 

State  of  North  Carolina,  )  Court  of  Pleas  and  Quarter  Sessions, 

McDowell  County.  |         July  Term,  1860. 

To  the  Justices  of  the  Court  of  Pleas  and  Quarter  Sessions  for  the  county  ot 
McDowell,  in  the  State  of  North  Carolina.  The  petition  of  Hiram  Kelly  against 
the  Western  North  Carolina  Railroad  Company,  defendants.  Your  petitioner 
humbly  complaining  showeth  unto  your  worships  that  he  is  seized  and  possess- 
ed of  two  tracts  of  land,  situated  and  being  in  McDowell  county,  upon  Mill 
Creek,  and  your  petitioner  further  showeth  that  the  "Western  North  Carolina 
Railroad  Company  is  authorized  by  its  charter  to  locate  and  establish  a  railroad 
from  Salisbury  to  the  French  Broad  River,  passing  through  said  land,  and  that 
the  said  company  has  located  the  said  road  upon  and  through  the  said  tracts,  to 
the  great  injury  and  damage  of  your  petitioner,  that  the  said  road  as  located  by 
the  officers  of  the  said  company  a'ong  the  narrow  bottom  lands  upon  said  Mill 
Creek  for  more  than  one  mile,  and  entirely  destroying  the  value  of  your  peti- 
tioner's land  for  cultivation,  and  greatly  interfering  with  the  comforts  and 
conveniences  of  his  dwelling  house  and  other  improvements  so  much  so  as  in  all 
probability  to  require  their  removal.  Your  petitioner  showeth  to  your  worship 
that  he  will  be  greatly  injured  and  damaged,  by  reason  of  the  location  of  said 
road,  and  is  desirous  of  having  the  damages  sustained  by  him  ascertained  ii  s 
the  manner  prescribed  by  the  charter  of  the  said  company,  and  therefore  prays 
your  worships  to  appoint  a  Board  or  commission  of  valuation  agreeable  to  the 
said  charter  to  assess  the  damages  done  your  petitioner  by  reason  of  the  said 
road,  and  report  to  this  Court — and  to  the  eud  that  the  said  company  may  be 
made  party  to  this  petition.  May  it  please  your  worships  to  order  that  a  copy 
of  this  petition,  together  with  a  Subpoena,  issue  to  the  said  company  to  be  served 


Petition. 


(n6) 

upon  Robert  C.  Pearson,  President  of  the  said  company,  commanding  the  said 
company  to  appear  at  the  next  term  of  this  Court,  and  answer  this  petition, 
&c,  &c. 

And  may  it  please  the  Court  to  grant  your  petitioner  such  other  and  further 
relief  as  the  premises  require  or  will  justify,  as  in  duty  bound  will  ever  pray, 
&c,  &c.  B.  S.  Gaithke,  Attorney 

for  Petitioner. 

Upon  the  back  of  said  petition  is  the  following  endorsement  : 
Hiram  Kelly,  vs.  Western  North  Carolina  Railroad  Company, 
Petition,  July  Term,   i860. 

Said  petition  being  returned  into  Court  as  aforesaid  was  placed 

upon  the  appearance  docket  and  there  stands  thus  : 

Hieam  Kelly,  "| 

VS.  I 

Westetn  North  Carolina    j     e  1  1  n' 
Railroad  Company.  J  (B.  S.  G.) 

Copy  and  Subpoena  issued  31st  August,  1860. 

Said  cause  was  continued  until  the  next  term  of  this  Court,  being  Fall  Term, 
1860,  and  there  stands  thus : 

Hiram  Kelly,  \ 

vs.  V  Petition. 

Western  N.  Carolina  Railroad  Company.)     (B.  S.  G.  and  W.  W.  A.) 

At  which  said  term  the  following  subpoena  was  returned  in  to  Court 
which  is  in  the  words  and  figures  following,  to  wit : 

State  of  North  Carolina  ;  to  the  Sheriff  of  Burke  County,  greeting  ; 

You  are  hereby  commanded  to  summon  Robert  C.  Pearson,  President  of 
the  Western  North  Carolina  Railroad  Company,  personally,  to  be  and  appear 
before  the  Justice  of  our  Court  of  Pleas  and  quarter  sessions  at  the  next  Court 
to  be  held  for  our  said  county  of  McDowell,  at  the  Courthouse  in  Marion,  on 
the  6th  Monday  after  the  4th  Monday  in  '  September  next,  then  and  there  to 
answer  the  petition  of  Hiram  Kelly,  now  filed  in  said  Court,  a  copy  of  which 
?uqpcena.  accompanies  this  subpoena  whieh  you  will  deliver  to  said  Pearson    and  return 

this  subpoena,  and  this  you  will  in  no-wise  omit  under  the  penalty  prescribed  bv 
law.  Witness  Alfred  M.  Fenley,  Clerk  of  our  said  Court,  at  office,  the  5th 
Monday  after  the  4th  Monday  in  June,  1S60,  and  in  the  85th  year  of  our  Inde- 
pendence. 

Issued  the  31st  ot  August,  i860. 

A.  M.  Fenley,  Clerk. 

Upon  the  back  of  said  subpoena  is  the  following,  (to-wit  :)  Hiram  Kelly  vs. 
Western  North  Carolina  Railroad  Company, .  subpoena  to  McDowell  county 
Court,  fall  term  i860.  Executed  this  7th  of  September,  1S60,  and  at  the  same 
time  delivered  a'  copy  of  the  petition  accompanying  this  process  to  R.  C.  Pear- 
son, a  director  of  said  Western  N.  C.  Railroad. 

B.  A.  Berry,  Sheriff. 


Said    cause   was   continued  until   the  next  term  of  this  Court,  being  fall  te    a, 
i860,  and  there  stands  thus  : 

Hiram  Kelly.  ) 

vs.  f  Petition. 

Western  North  Carolina  Railroad  Company.  )   (B.  S.  G.  and  W.  W.  A.) 

And  thereupon  the  cause  was  regularly  continued  from  term  to  term,  (with- 
out any  action  had  thereon,)  up  to  summer  term,  1868,  when  by  an  act  of  the 
Legislature  the  cause  was  transferred  from  the  late  county  Court  of  McDowell 
county,  to  the  Superior  Court  of  McDowell  county. 

State  of  North  Carolina,     [  The  10th  Monday  after  the  3d  Monday  in  Sept. 
McDowell  county.         )    A.  D.  1868,  being  the  30th  of  Nov.  in  said  year. 

Be  it  remembered  that  a  Superior  Court  of  law  is  this  day  opened 
and  held   in   and   for  the   county  of  McDowell,  at  the  Courthouse 
in  Marion.     Present  and  presiding  and  holding  said  Court,  the  Hon. 
Anderson  Mitchell,  Judge  of  said  Court. 
The    said   cause  being   returned  into  Court  as  aforesaid,  was  placed 

upon  the  Civil  Issue  Docket,  and  there  stands  thus: 

Hiram  Kelly,  ) 

vs.  >  Petition. 

Western  North  Carolina  Railroad  Company.       )       (B.  S.  G.  and  W.  W.  A.) 

And  thereupon  the  cause  was  continued  to  the  next  term  of  the  Court,  (to- 
wit  :)  On  the  2d  Monday  after  the  3d  Monday  in  April,  1869,  at  which  last 
mentioned  term,  at  the  Court  House  in  Marion,  before  the  Honorable  J.  L. 
Henry,  Tudge  of  said  Court,  the  parties  aforesaid,  by  their  attorneys  aforesaid 
come  ; 

And  thereupon,  the  cause  is  continued  to  the  next  term  of  the  Court,  (to- 
wit  :)  On  the  2d  Monday  after  the  3rd  Monday  in  September,  1869,  at  which 
last  mentioned  term,  at  the  Court  House  in  Marion,  before  the  Honorable  R. 
[H.  Cannon,  Judge  of  said  Court,  the  parties  aforesaid,  by  their  attorneys  afore-, 
said,  come;  And  thereupon  the  cause  is  continu:d  to  the  next  term  of  the  Court 
'(to-wit :)  On  the  2nd  Monday  after  the  3d  Monday  in  April,  1870,  at  which 
last  mentioned  term,  at  the  Court  House  in  Marion,  before  the  Honorable  J.  L. 
Henry,  Judge  of  said  Court,  when  the  following  order  was  made,  to-wit  : 

Hiram  Kelly,  ) 

Against  >•   Petition. 

W   N.  C.  R.  R.  Co.  ,) 

I  It  is  ordered  by  the  Court  with  the  consent  of   the    parties  that 

C.  L.  S.  Corpening,  J.  B.  Burgin,  Thos.  Lytle,  (Sen.,)  J.  A.  Cox- 

ey.  and  Noah  Souther,  be  appointed  commissioners,  to    assess    the 

damages  sustained  by  the  plaintiff,  and  report  to  the  next    term  of 
,  .     ,-T  ati  1  •  .1  -  Commission'rs 

this  Court.     And  thereupon  the  cause    is    continued    to    the    next   appointed. 

ffeerm  of  the  Court,  (to-wit  :)  on  the    2nd   Monday    after    the    3rd 

Monday  in  September,  1870,  at  which  last  mentioned  term    at  the 


(nS) 

Court  House  in  Marion,  before  the  Honorable  J.  M.  Cloud,  Judge 
of  said  Court.  At  which  said  term  the  following  report  was  re- 
turned unto  Court  which  is  in  the  following  words  and  figures, 
(to-wit  :) 

North  Carolhia,  McDowell  County,  Superior  Court  : 

We,  the  commissioners,  appointed  by  order  of  Court,  to  assess  the  damages 
sustained  by  Hiram  Kelly  by  reason  of  the  Western  North  Carolina  Railroad 
running  through  his  land,  in  cutting  timber,  &c, — do  assess  said  damages  to  the 
amount  of  two  hundred  dollars  with  the  understanding  that  no  (October  3rd, 
1870)  portion  of  the  grounds  occupied  by  the  dwelling  house  and  other  out  build- 
ings of  the  said  Hiram  Kelly,  are  condemned  or  to  be  claimed  by  said  railroad 
company,  and  only  a  sufficiency  of  his  lands  to  be  used  by  the  corporation  as  may 
be  necessary  for  the  road-bed,  and  keeping  up  the  same. 

fC.  L.  S.  CoBPENING, 

|  Thos.  Lttle, 
(Signed.)     ■{  J.  A.  Coxey, 

|  JOS.  B.  BlTBGIN, 
(^NOAH  SOUIHEB. 

We,  the  commissioners,  in  making  the  above  allotment  for  damages  intend 
the  store  house  now  occupied  by  Malone  &  Co.,  to  be  the  property  of  the  rail- 
road at  the  expiration  contract. 

("Thos.  Lytle, 

^c;™„,q  -\       J  NOAH  Southee, 
(Signed.)     {  jQS  B  BuRGi^ 

[J.  A.  Coxey. 

Also  at  which  said  term  the    following    exceptions    were    filed, 

which  are  in  the  following  words  and  figures,  (to-wit  :) 

Hie  am  Kelly,        ) 

VS.  V 

W.  N.  C.  R.  R.  Co.     ) 

The  applicant,  Hiram  Kelly,  excepts  to  the  report  in  this  case. 

1.  The  commissioners  insert  terms  and  conditions  which  do  not  legally  bind 
tbe  railroad  company,  and  therefore  no  protection  to  Kelly. 

2.  The  commissioners  have  omitted  to  take  in  consideration  several  important 

ErXeCpoPrtti.°nS  t0  elements  of  damage. 

3.  Commissioners  wrongfully  and  carelessly  refused  to  inspect  the  damaged 
premises,  or  to  hear  proof. 

4.  Commissioners  did  not  give  notice  of  the  time  and  place  of  meeting. 

5.  The  damage  of  $200  is  wholly  inadequate. 

Report  Filed — Exceptions    Filed. 

Keport  set  aside   and   continued  under  former   reference  to    the 

Report    s  e  t  next  term  of  the  Court,  (to-wit :)     On  the  2d  Monday   after  the  3rd 

Monday  in  April,  1871,  at  which  last  mentioned  term,  at  the   Court 

House  in  Marion,  before  the  Honorable  James  L.  Henry,    Judge  of 


and 
judgment. 


(119) 

said  Court,  the  parties  aforesaid,  by  their  attorneys  aforesaid,    come 
when  the  following  proceedings  were  had,  to-wit : 

Hiram  Kelley,  )  (Erwin.) 

against  f  Petition  for  damages.  Except's  with 

W.  N«  C.  R.  R.  Co.  )  (Gaither.)    g™^  «" 

Exceptions  heretofore  filed  withdrawn  ;  the  reference  stricken  out  ;  and  judg- 
ment pursuant  to  former  award  : 

Hiram  Kelley,  )  Judgment  $200.00,  with  interest 

against  [■  on  the  same  from  the  1st  day  of 

The  Western  North  Carolina  Railroad   Co.    )  May,  1871,  till  paid,   and  costs. 
A.  M.  Finley,  C.  C.  C,  $7  50 

D.  O.  H.  W.  Gillespie,  C.  S.  C,  6  85 

County  Tax  1  00 

Att'y   A.  M.  Erwin,  10  00 

Sh'ff  A.  H.  Simmons,  10  40 

"      B.  A.  Berry,  60 

Cons.  Thomas  Lytle,  5  10 

"       Noah  Souther,  5  10 

"      Jos.  B.  Burgin,  5   10 

"      J.  A.  Coxey,  5  10 

C.  L.  S.  Corpening,  5  10 


$62  85 
And  thereupon  execution  issued  upon  the    above  entitled  judg- 
ment, returnable  to  Fall  Term,  1871,  in  the  following    words   and 
figures, ■to-wit  : 

State  of  North  Carolina;    To  the  Sheriff  of  McDowell  County, 

Greeting: 

"We  command  you,  that  of  the  goods  and  chattels,  lands  and  tenements,  of  Executl0n- 
the  Western  North  Carolina  Railroad  Company,  if  to  be  found  in  your  county, 
you  cause  to  be  made  the  sum  of  two  hundred  ($200.00,)  dollars,  with  interest 
on  the  same  from  the  1st  day  of  May,  1871,  till  paid,  and  costs,  which  lately, 
in  our  Superior  Court,  lor  the  county  of  McDowell  was  adjudged  to  be  due 
Hiram  Sibley  for  debt,  besides  the  further  sum  of  ($54.45,)  fifty  four  dollars  and 
forty  five  eents  for  costs  and  charges  in  said  suit  expended,  whereof  the  said 
Railroad  Company  is  liable,  as  appears  to  us  of  record.  And,  have  you  the 
said  moneys,  besides  your  fees  for  this  service,  before  our  said  Court,  at  Marion, 
on  the  2d  Monday  after  the  third  Monday  in  September  next,  then  and  there 
to  render  to  the  said  Court  the  debt,  and  the  costs  and  charges  aforesaid. 
Herein  fail  not,  and  have  you  then  and  there  this  execution. 

Issued  the  14th  day  of  August,  1871. 

D.  O.  H.  W.  Gillespie, 
Clerk  of  the  Superior  Court  of  McDowell  County. 

And  upon  the  back  of  the  foregoing  execution  is  the  following   endorsement, 


(  120) 

(to-wit  :)  No.  38,  Hiram  Kelley,  against  the  Western  N.  Ca.  Railroad  Com- 
pany, fi  fa.,  returnable  to  Fall  Term,  1S71,  McDowell  Superior  Court ;  judg- 
ment $200.00,  with  interest  on  the  same  from  the  1st  day  of  May,  1871,  until 
paid,  and  costs. 

A.  M.  Finley,  C.  C.  C,  $  7  50 

D.  O.  H.  W.  Gillespie,  C.  S.  C,  6  45 

County  Tax,  1  00 

Sheriff  A.  H.  Simmons,  10  60 

Attorney,  B.  S.  Gaither,  4  00 

Sheriff  B.  A.  Berry,  60 

Commissioners,  Thomas  Lytle,  5  10 

"             Noah  Souther,  5  10 

*                                                        "             Jos.  B.  Burgin,  5  10 

J.  A.  Coxey,  5  10 

C.  L.  S.  Corpening,  5  10 

$  54  45 
To  hand,  Sept.  2,  1871. 

(Signed.)        A.  H.  Simtcons,  Sheriff, 
Levy  on  train.      Levy  made  on  the  Morganton   train  consisting  of  one  railroad  engine,  two 
coaches  and  ond  box  car,  to  satisfy  several  judgments  issued  from  McDowell 
Superior  Court,  now  in  my  hands  for  collection,  September  12th,  1871. 

(Signed.)        A.  H.  Simmons,  Sheriff. 
Sale  of  jrain.       After  due  advertising,  sale  made,  when  W.  H  Malone  became  the  last  and 

highest  bidder  at  two  hundred  and  fifty  dollars.     No  money  paid  into  office. 
No  money  p'd-  (Signed.)        A.  H.  Simmons,  Sheriff. 

The  foreging  and  entitled  judgment  was  carried  to  Spring  Term, 
1872,  and  there  stands  thus;  in  the  following  words  and  figures, 
to-wit  : 

Hieam  Kelly,  } 

Against 
The  Western  North  Carolina  Railroad  Company.  ) 

Judgment  $200.00  with  interest  on  the  same  from  1st  day  of  May,  1871,  till 
paid,  and  cost  $65.17. 

And  thereupon  an  execution  issued  upon  said  judgment  return- 
able to  Spring  Term,  1872,  in  the  following  words  and  figures, 
to-wit  : 

State  of  Noeth  Caeolina. 

To  the  Sheriff  of  McDowell  County, — Greeting: 
We  command  you,  that  of  the  goods  and  chattels,  lands  and  tenements  of  the 
Western  North  Carolina  Railroad  Company,  if  to  be  found  in  your  county,  you 
cause  to  be  made  the  sum  of  ($200.00)  two  hundred  dollars  with  interest  on  the 
same,  from  the  1st  day  of  May,  1871,  till  paid  and  cost,  which  lately  in  our 
Superior  Court,  for  the  county  of  McDowell,  was  adjudged  to  be  due  Hiram 


( I31 ) 

Kelly  for  debt,  besides  the  further  sum  of  sixty-five  dollars  arid  seventeen  cents 
($65.17)  for  costs  and  charges  in  said  suit  expended,  whereof  the  said  railroad 
company  is  liable  as  appears  to  us  of  record  :  And  have  you  the  said  moneys, 
besides  your  fees  for  his  service  before  our  said  Court  at  Marion  on  the  2nd 
Monday  after  the  3rd  Monday  in  April  next,  then  and  there  to  render  to  the  said 
Court,  the  debt,  and  the  costs  and  charges  aforesaid.  Herein  fail  not,  and  have 
you  then  and  there  this  execution.     Issued  the  25th  day  of  December,  1871. 

(Signed.)        D.  O.  H.  W.  Gillespie,  Clerk 
of  the  Superior  Court,  of  McDo  well  County. 

And  upon  the  back  of  the  above  entitled  execution  is  the  follow- 
ing endorsement,  to-wit  : 

No.  140,  Hiram  Kelly  against  the  Western  North  Carolina  Eailroad  Company. 
Fi  fa  returnable  to  Spring  Term,  1872,  McDowell  Superior  Court.  Judgment 
$200.00,  with  interest  on  the  same  from  the  1st  day  of  May,  1871,  till  paid 
and  cost. 

A.  M.  Finley,  C.  C  C. 
D.  O.  H.  W.  Gillespie,  C.  S.  C, 
County  Tax, 
,  Atty,  A.  M.  Erwin, 

Shff.  A.  H.  Simmons, 

'•    B.  A.  Berry, 
Commissioner  Thomas  Lytle, 
"  Noah  Souther, 

"  J.  B.  Burgin, 

"  J.  A.  Coxey, 

"  C.  L.  S.  Corpening, 

Docketing  to  Plaintiff, 

$65  17 

Levied  this  Execution  this  day  on  the  following  property  of  the  Western 
North  Carolina  Railroad  Company,  all  the  rights  and  interests  of  said  company, 
the  real  estate,  consisting  of  the  road-bed  and  lands  connected  therewith,  station 
houses,  water  tanks,  &c,  and  all  the  franchises  of  said  railroad  company, 
December  1st,  1871.  (Signed.)        A.  H.  Simmons,  Sheriff. 

Also  an  execution  issued  to  the  Sheriff  of  Burke  County,  returna- 
ble to  Spring  Term  1872,  which  is  in  the  following  words  and  fig- 
ures, (to  wit.)  : 

State  of  Noeth  Carolina, 

To  the  Sheriff  of  Burke  County,  Greeting  : 

We  command  you,  that  of  the  goods  and  chattels,  lands  and  tenements  of 
the  Western  North  Carolina  Rail  Road  Company,  if  to  be  found  in  your  coun- 
ty, you  cause  to  be  made  the  sum  of  ($200.00)  two  hundred  dollars,  with  inter- 
est on  the  same  from  the  1st  day  of  May,  1871  till  paid,  and  cost,  which  lately, 
in  our  Superior  Court,  for  the  county  of  McDowell,  was  assigned  to  be  due  Hi- 


>  7  50 

9  17 

1  00 

10  00 

10  40 

60 

5  10 

5  10 

5  10 

5  10 

5  10 

1  00 

(122) 

ram  Kelley  for  debt,  besides  the  further  sum  of  sixiy-five  dollars  and  seventeen 
cents  ($65.17)  for  costs  and  charges  in  said  suit  expended,  whereof  the  said 
Execution.  Rail  Road  Company  is  liable  as  appears  to  us  of  record.  And  have  you  the  said 
moneys  besides  your  fees  for  this  service  before  our  said  Court  at  Marion  on 
the. 2nd  Monday  after  the  3d  Monday  in  April  next,  then  and  there  to  render  to 
the  said  court  the  debt  and  the  costs  and  charges  aforesaid.  Herein  fail  not, 
and  have  you  then  and  there  this  execution. 
Issued  the  25th  day  of  December,  1871. 

[Seal.]  D.  O.  H,  W.  Gillespie, 

Clerk  of  the  Superior  Court  of  McDowell  County. 

And  upon  the  back  of  the  foregoing  and  entitled  execution  is  the 
follovring  endorsement,  to  wit. :  No.  140,  Hiram  Kelley  against  the 
Western  North  Carolina  Rail  Road  Company,  Ji  fa.  returnable  to 
Spring  Term  1872,  McDowell  Superior  Court. 

Judgment  $200.00,  with  interest  on  the  same  from  the  1st  day 
of  May,  1881,  till  paid  and  cost. 

A.  M.  Pindley,  C  C.  C,  $7  50 

D.  O.  H.  W.  Gillespie,  C.  S.  C,  9  17 

County  Tax,  1  00 

Att'y  A.  M.  Erwin,  10  00 

Shff.  A.  H.  Simmons,  10  40 

"     B.  A.  Berry,  60 

/  Com,  Thomas  Lytle,  5  10 

"    Noah  Souther,  5  10 

"    J.  B  Burgin,  5  10 

"    Coxey,  5  10 

"     C.  L.  S.  Corpening,  [5  10 

Docketing  to  Plaintiff,  1  10 

$65.17 
To  hand,  December  29th,  1871. 

E.  P.  Mooee,  Shff. 

All  of  the  property  of  the  Defendant  in  my  county,  and  liable  to  execution, 
sold  by  me  and  the  proceeds  applied  to  payment  of  execution  on  an  older  judg- 
ment.    This  23d  March,  1872. 

[Signed.]  E.  P.  Moore,  Shff. 

By  Jos.  Brittain,  Dept.  Shff. 

And  thereupon,  an  execution  issued  upon  the  foregoing  and  en 
titled  j  udgment  to  the  Sheriff  of  Catawba  County,  returnable  to 
Spring  Term  1872,  which  is  in  thefollowing  words  and  figures,  to  wit. : 

State  of  Noeth  Carolina, 
Execution    to  T°  the  Sheriff  of  Catawba  County,  Greeting : 

cat  wba  co.       -yye  command  you,  that  of  the  goods  and  chattels,  lands  and  tenements  of  the 


(  123) 

Western  North  Carolina  Rail  Road  Company,  if  to  be  found  in  fyour  coucty, 
you  cause  to  be  made  the  sum  of  ($200.00,)  two  hundred  dollars,  with  interest 
on  the  same  from  the  1st  day  of  May  1871,  till  paid  and  cost,  which,  lately  in 
our  Superior  Court,  for  the  county  of  McDowell,  was  adjudged  to  be  due  Hiram 
Kelly  for  debt,  besides  the  further  sum  of  sixty-five  dollars  and  seventeen  cents 
($65.17)  for  costs  and  charges  in  said  suit  expended,  whereof  the  said  Rail  Road 
Company  is  liable  as  appears  to  us  of  record.  And  have  you  the  said  moneys, 
besides  your  fees  for  this  service,  before  our  said  Court  at  Marion,  on  the  2nd 
Monday  after  the  3d  Monday  in  April  next,  then  and  there  to  render  to  the  said 
Court,  the  debt  and  the  costs  and  c  barges  aforesaid.  Herein  fail  not,  and  have 
you  then  and  there  this  execntion.  Issued  the  25th  day  of  December,  1871. 
[Seal.]  D.  O.  H.  W.  Gillespie, 

Clerk  of  the  Superior  Court  of  McDowell  County. 

And  upon  the  back  of  the  said  execution  is  the  following  endorse- 
ment, to  wit : 

No.  140,  Hiram  Kelley  against  the  Western  North  Carolina  Railroad  Com- 
pany, fi  fa.,  returnable  to  the  Spring  Term,  1872,  McDowell  Superior  Court ; 
iud°rnent  $200.00,  with  interest  on  the  same  from  the  1st  day  of  May,  1S71,  till 
paid,  and  cost. 

A.  M.  Finley,  C.  C.  C,  $  7  50 

D.  O.  H.  W.  Gillespie,  C.  S.  C,  9  17 

County  Tax,  1  00 

Attorney,  A.  M.  Erwin,  10  00 

Sheriff  A.  H.  Simmons,  10  4O 

Sheriff  B.  A.  Berry,  60 

Commissioners,  Thomas  Lytle,  5  10 

"             Noah  Souther,  5  10 

"             Jos.  B.  Burgiu,  5  10 

J.  A.  Coxey,  5  10 

C.  L.  S.  Corpening,  5  10 

Docketing  to  Plaintiff,  1  00 

$  65  17 

After  due  advertisement,  I  sold  at  the  Court  House  at  Newton,  county  of 
Catawba,  on  the  8th  day  of  January,  1872,  the  entire  franchise  of  the  Western 
North  Carolina  Railroad  Company,  together  with  all  the  rights  and  privileges  S^Je.t?  R"  Y' 
incident  thereto,  or  in  anywise  connetced  therewith,  when  and  where  R.  Y. 
McAden  became  the  purchaser,  he  bidding,  the  debt  and  interest,  and  cost,  and 
taking  the  property  for  the  limit  of  time  prescribed  in  the  charter  of  the  corpo- 
ration, McAden's  receipt  filed  on  the  fi  fa.,  in  Catawba,  costs  paid  in  Iredell. 
See  levy  in  Catawba  county,  at  Newton,  he,  McAden,  claiming  the  debt  by 
purchase,   &c. 

(Signed,)  '  J.  Clixe,  Sheriff. 

And  thereupon  an  execution  issued  upon   the   foregoing  and   en- 


(I24) 

titled  judgment,  to  the  sheriff  of  Iredell  cotinty,  returnable  to  Spring 

term,  1872,  which  is  in  the  following  words  and  figures,  to- wit : 

State  of  North  Carolina  ; 

To  the  Sheriff  of  Iredell  County — Greeting  : 

We  command  you,  that  of  the  goods  and  chattels,  lands  and  tenements,  of 
the  Western  North  Carolina  Railroad  Company,!,  to  be  found  in  your  county, 
Execution  you  cause  to  be  made  the  sum  of  ($200.00,)  two  hundred  dollars,  with  interest 
on  the  same  from  the  1st  day  of  May,  1871,  till  paid,  and  cost,  which  lately,  in 
our  Superior  Court  for  the  county  of  McDowell,  was  adjudged  to  be  due  Hiram 
Kellev  for  debt,  besides  the  further  sum  of  sixty -five  dollars  and  seventeen  cents, 
($65.17,)  for  costs  and  charges  in  said  suit  expended,  whereof  the  said  Railroad 
Company  is  liable,  as  appears  to  us  of  record.  And  have  you  the  said  moneys, 
besides  your  fees,  for  this  service,  before  our  said  Court  at  Marion,  on  the  2d 
Monday  after  the  third  Monday  in  April  next,  then  and  there  to  render  to  the 
said  Court  the  debt,  and  the  costs  and  charges  aforesaid.  Herein  fail  not.  and 
have  you  then  and  there  this  execution. 

Issued  the  25th  day  of  December,  1S71. 

[Seal.]  D.  O.  H.  W.  Gillespie, 

Clerk  of  the  Superior  Court  of  McDowell  County. 

And  upon  the  back  of  the  foregoing  and  entitled  judgment  is 
the  following  endorsement,  to-wit  : 

No.  140.  Hiram  Kelley  against  the  Western  North  Curolina  Railroad  Com- 
pany, returnable  to  Spring  Term,  1S72,  McDowell  Superior  Court,  judgment 
$200.00  with  interest  on  the  same  from  the  1st  day  of  May,  1871,  till  paid,  and 
cost. 


A.  M.  Finley,  C.  C.  C, 

$  7  50 

D.  O.  H.  W.  Gillespie,  C.  S.  C, 

9  J7 

County  Tax, 

1  00 

Att'y  A.  M.  Erwin, 

10  00 

Sh'ff  A.  H.  Simmons, 

10  40 

"     B.  A.  Berry, 

60 

Com'r  Thos.  Lytle, 

5  10 

"       Noah  Souther, 

5  10 

"       J.  B.  Burgin, 

5  10 

"      J.  A.  Coxey, 

5  10 

"       C.  L.  S.  Corpening, 

5  10 

Docketing  to  Plaintiff, 

1  00 

$  65  17 

Not  satisfied.  I  had  one  from  the  clerk  of  the  Superior  Court  of  Iredell,  for 
the  same  amount  and  for  the  same  man,  and  it  is  satisfied  in  this  office  in  Ire- 
dell. 

(Signed,)  W.  F.  Wosson,  Sh'ff. 


And  thereupon  an  execution    issued    upon    the    foregoing-    and 
entitled  judgment  to  the  Sheriff  of  Rowan    county,    returnable  to 
the    Spring   Term,    1872^    which    is    in    the  following  words  and 
figures,  to-wit  : 
State  of  North  Carolina. 

To  the  Sheriff  of  Rowan  county,  Greeting : 
We  command  you,  that  of  the  goods  and  chattels,  lands  and  tenements  of  the  Execution. 
Western  North  Carolina  Railroad  Company,  if  to  be  found  in  your  county,  you 
cause  to  be  made  the  sum  of  ($200.00)  two  hundred  dollars,  with  interest  on  the 
same  from  the  1st  day  of  May,  1871,  till  paid  and  cost,  which  lately  in  our  Su- 
perior Court,  for  the  county  of  McDowell,  was  adjudged  to  be  due  Hiram  Kelley 
for  debt,  besides  the  further  sum  of  sixty -Ave  dollars  and  seventeen  cents  ($65. 17) 
for  costs  and  charges  in  said  suit  expended,  whereof  the  said  railroad  company 
is  liable  as  appears  to  us  of  record.  And  have  you  the  said  moneys,  besides 
your  fees  for  this  service,  before  our  said  Court  at  Marion,  on  the  2nd  Monday 
after  the  3rd  Monday  in  April  next,  then  and  there  to  render  to  the  said  Court 
the  debt  and  the  costs  and  charges  aforesaid.  Herein  fail  not  and  have  you 
then  and  there  this  execution. 
Issued  the  25th  day  of  December,  1871. 

[Seal.]        D.  O.  H.  W. G-illepise, ■ 
Clerk  of  the  Superior  Court  of  McDowell  county. 
And  upon  the  back  of  the  foregoing  and    entitled    execution    is 
the  following  endorsement,  to-wit  : 

No.  140,  Hiram  Kelley  against  the  Western  North  Carolina  Railroad  Company. 
Fi  fa  returnable  to  the  Spring  Term,  1872,  McDowell  Superior  Court. 
Judgment  $200.00  with  interest  on  the  same  from  the  1st  day  of  May,    1871, 
till  paid,  and  cost. 

A.  M.  Finley,  C.  C.  C, 

D.  O.  H.  W.  Gillespie,  C.  S.  C, 

County  Tax, 

A.  M.  Erwin, 

Shff.  A.  H.  Simmons, 

"     B.  A.  Berry, 
Commissioner  Thomas  Lytle, 
"  Noah  Souther, 

"  J.  B.  Burgin, 

"  J:  A.  Coxey, 

"  C.  L.  S.  Corpening, 

Docketing  to  Plaintiff, 

$65  17 
Received  December  28,  1871. 

(Signed.)        W.  W,  Walton,  Sheriff. 
No  goods  or  chattels,  lands  or  tenements  of  the  defendants  that  is  subject  to 
execution  to  be  found  in  my  county  to  satisfy  this  fi  fa. 

(Signed.)        W.  W.  Walton,  Sheriff. 


7  50 

9  17 

1  00 

10  00 

10  40 

60 

5  10 

5  10 

5  10 

5  10 

5  10 

1  00 

(126) 

And  thereupon  an  execution  was  issued  by  the  Clerk  of  the 
Superior  Court  of  Rowan  county,  upon  the  above  entitled  judg- 
ment,and  returned  to  the  office  of  the  Clerk  of  the  Superior  Court 
of  McDowell  county,  which  is  in  the  following  words  and  figures, 
to-wit  : 
Rowan  County — In  the  Superior  Court, 

The  State  of  North  Carolina. 
To  the  Sheriff  of  Rowan  County, — Greeting : 
Whereas,  Judgment  was  rendered  on  the  1st  day  of  May,  1871,    in  an  action 
between  Hiram  Kelley,  Plaintiff,  and  the    Western    North  Carolina  Railroad 
Execution.       Company,  Defendant,  in  favor  of  the  said  Hiram   Kelley,  Plainti™,  against  the 
said  Western  North  Carolina  Railroad  Co  npany,  Defendant,    for  tha    sum   of 
two  hundred  dollars,  as  appears  to  us  by  the  Judgment  Roll,  filed  in  the   office 
of  the  Clerk  of  said  Court;  and  whereas  the  said  judgment  was  docketed  in  said 
county,  on  the  27th  day  of  November,  1871,  and  the  sum  of  two  hundred  dollars 
is  now  actually  due   thereon,    with  interest  on  the  same  from  the   1st   day 
of  May,  1871,  and  the  further  sum  of  sixty-three  dollars  and  fifty  cents  for  cost 
and  disbursements  in  said  suit  expended,  whereof  the  said  Western  North   Car- 
olina Railroad  is  liable. 

Y'  u  are  therefore  commanded,  to  satisfy  the  said  judgment  out  of  the  personal 
property  of  the  said  Defendant  within  your  county;  or  if  sufficient  personal  pro- 
perty cann.t  be  found,  then,  out  of  the  real  property  in  your  county  belonging  to 
such  Defendant — on  the  day  when  the  said  judgment  was  so  docketed  in  your 
county,  or  at  any  time  thereafter,  in  whose  hands  soever  the  same  may  be;  and 
have  you  this  execution,  together  with  the  money,  before  our  said  Court,  at  the 
Court  House  in  Salisbury  on  the  4th  Monday  after  the  3rd  Monday  in  March 
next,  then  and  there  to  render  the  same  to  the  said  Plaintiff. 

Witness  :     A.  Judson  Mason,  Clerk  of  our  said  Court  at  office  in  Salisbury,  the 
4th  Monday  after  the  3rd  Mondy  in  September,  1871. 
Issued  the  27th  day  of  November,  1871. 

[Seal]        A.  Judson  Mason, 
Cierk  of  the  Superior  Court  for  Rowan  county. 
And  upon  the  back  of  the  foregoing    entitled    execution    is    the 
following  endorsements,  to-wit  : 

No.  873,  Hiram  Kelley,  Plaintiff,  against  Western  North  Carolina  Railroad  Com- 
pany, execution  against  property,  to  Spring  Term,  1872,  Rowan  Superior 
Court. 

Judgment  1st  May,  1871;  Principal  $200.00. 

Costs. 
A.  M.  Finley,  C.  C.  C,  $7  50 

D.  O.  H.  W.  Gillespie,  C.  S.  C,  6  85 

County  Tax  1  00 

Att'y    A.  M.  Erwin,  10  00 

Sh'ff  A.  H.  Simmons,  10  40 

"      B.  A.  Berry,  60 


s 

IO 

5 

IO 

5 

IO 

5 

IO 

5 

IO 

1 

00 

65 

(  "7  ) 

Corns.  Thomas  I/jt'e, 

"       Noah  Souther, 

"      J.  A.  Coxey, 

"      Jos.  B.  Burgin, 
C.  L.  S.  Corpening, 
Docketing  to  Plaintiff, 
A.  J.  Mason,  Clerk, 

$63  50 

Received  November  29th,  1871. 

(Signed.)        W.  W.  Walton,  Sheriff. 

No  goods  or  chattels,  lands  or  tenements  of  the  defendants  to  be  found  in 
my  county  to  satisfy  this  execution. 

(Signed.)        W.  W.  Walton,  Sheriff. 

And  thereupon  an  execution  issued  in  Iredell  county,  and  return- 
ed into  the  Clerk's  office  in  McDowell    county,    which    is    in   the 
following  words  and  figures,  (to- wit  :) 
State  of  North  Carolina, 

Iredell  Cottnty, — In  the  Superior  Court. 
To  the  Sheriff  of  Iredell  County,— Greeting  : 

Whereas,  Judgment  was  rendered  on  the  1st  day  of  May,  1871,  in  an  action  > 
between  Hiram  Kelley,  Plaintiff,  and  the  Western  North  Carolina  Railroad 
Company,  Defendant,  in  favor  of  the  said  Hiram  Kelley,  Plaintiff,  against  the 
Western  North  Carolina  Railroad  Company,  Defendant,  for  the  sum  of  two 
hundred  dollars  as  appears  to  us  by  the  Judgment  Roll  filed  in  the  office  of  the 
Clerk  of  said  Court,  and  whereas  the  said  judgment  was  docketed  in  said  county 
on  the  29th  day  of  November,  1871,  and  the  sum  of  (#200.00)  two  hundred  dol- 
lars is  now  actually  due  thereupon,  with  interest  on  $200.00  dollars  from  the 
1st  day  of  May,  1871,  until  paid.  And  the  further  sum  of  sixty-three  dollars 
and  fifty -five  cents  for  cost  and  disbursements  in  said  suit  expended,  whereof 
the  said  Western  North  Carolina  Railroad  Company  is  liable. 

You  are  therefore  commanded  to  satisfy  the  said  judgment  out  of  the  personal 
property  of  the  said  Defendant,  within  your  county,  or  if  sufficient  personal  pro- 
perly cannot  be  found,  then  out  of  the  real  property  in  your  county  belonging 
to  such  defendant  on  the  day  when  the  said  judgment  was  so  docketed  in  your 
couuty,  or  at  any  time  thereafter,  in  whose  hands  soever  the  same  may  be;  and 
have  you  this  execution  together  with  the  money  before  our  said  Court  at  the 
Court  House  in  Statesville  on  the  2nd  Monday  after  the  3rd  Monday  in  March 
next,  then  and  there  to  render  the  same  to  the  said  Plaintiff. 

Witness  C.  L.  Summers,  Clerk  of  our  said  Court  at  office  in  Statesville,  the 
2nd  Monday  after  the  3rd  Monday  in  August,  1871. 

Issued  the  29th  day  of  November,  1871. 

(Signed.)        C.  L.  Summers, 
Clerk  of  the  Superior  Court  for  Iredell  County. 

And  upon  the  back  of  the  foregoing    entitled    execution    is  the 


(.128) 

following  endorsement,  (to-\vit  :) 

No.  640.  ~] 

Hiram  Kelley,  ; 

VS.  \ 

The  Western  North  Carolina  Railroad  Company,  J 

Execution  to  Spring  Term,  1872,     Judgment  1st  May,  1871. 
$200.00  with  interest  from  1st  May,  1871,  till  paid. 

A.  M.  Finley,  C.  C.  C. 

D.  O.  H.  W.  Gillespie,  C.  S.  C, 

County  Tax, 

Atty.  A.  M.  Erwin, 

Shff.  A.  H.  Simmons, 
"     B.  A.  Berry, 

Corns.  Thomas  Lytle, 
"      Noah  Souther, 
"      J.  B.  Burgin, 
"      J.  A.  Coney, 
"      C.  L.  Corpening, 

Docketing  to  Plaintiff, 


Docketing  in  Iredell, 

This  execution  and  Sheriff's  return, 

$63.55 

Levied  this  execution  tins  day  on  the  following  property  of  the  Western  N. 
Levy.  C.  Rail  Rroad  Company,  all  the  rights  and  interest  of  said  Company.     The  real 

estate  consisting  of  Rail  Road  bed  and  lands  connected  with  same,  station  hous- 
es, water  tanks,  &c,  and  all  the  franchises  of  said  Rail  Road  Company,  Decem- 
ber 1st,  1871.  (Signed.)  W.  F.  Wosson, 

Sheriff. 


Debt  principal 

$  7  50 

6  85 

1  00 

10  00 

10  40 

60 

5  10 

5  10 

5  10 

5  10 

5  10 

1  00 

$62.85 

25 

45 

Sale  of  fran- 


In  pursuance  of  notice  heretofore  duly  given,  I,  this  the  6th  day  of  January 
1872,  at  the  Court  House  door  in  the  county  of  Iredell,   have  this  day  sold  the 

chise,  Ac. to    franchises,  with  all  the  rights  and  privileges   thereof,  and  all   the  property   &c. 

e^  "  c*  ' "  passing  therewith  by  law  of  the  within  named,  the  Western  North  Carolina 
Rail  Road  Company,  to  satisfy  the  within  fi fa.,  R.  Y.  McAden  became  the  last 
and  highest  bidder  for  the  same  by  bidding  the  amount  of  this,  the  within  exe- 
cution and  cost,  thereon,  to-wit.  :  the  sum  of  two  hundred  and  eighty  dollars  and 
forty-six  cents  ($280.46).  Retain  $7.91,  my  fees  and  commissions,  pay  into  office 
$271.75 — amount  of  judgment  and  court  cost. 

(Signed.)  W.  F.  Wosson,  Sh'ff. 

Received  my  fee,  45  cents,  for  issue  execution  and  return. 

(Signed.)  C.  L.  Summers,    C.  S.  C. 

State  of  North  Carolina.  McDowell  County. 
I.  D.  O.  H.  W.  Gillespie,  Clerk  of  the  Superior   Court  for  the  county  of  Mc- 


(  129  ) 

Dowell  and  State  aforesaid,  do  hereby  certify  that  the  foregoing'  is  a  full,  true 
and  perfect  transcript  of  the  record  (in  the  case  up  to  the  rendition  of  the  judg- 
ment, and  a  full,  true  and  perfect  copy  of  all  the  record  had  and  done  in  the 
case  since  the  rendition  of  the  said  Judgment)  wherein  Hiram  Kelley  is  Plain- 
tiff and  the  Western  North  Carolina  Railroad  Company  is  Defendant. 

Given  under  my  hand  and  seal,  at  office  in  Marion,  the  20th  day  of  October, 
1881.  [Seal.]  D.  O.  H.  W.  Gillespie, 

Clerk  Superior  Court,  McDowell  County. 

I  certify  that  the  only  money  I  ever  received  on  my  judgment  of  $200 
against  the  Western  North  Carolina  Rail  Road  Company  was  paid  me  by  my 
Attorney,  A.  M.  Erwin.  This  money  was  made  by  a  sale  of  the  Road  to  R. 
Y.  McAden. 

Oct.  3d,  1881.  Hikam  Kelley. 

Test.  :     M.  E.  Carter. 

I  certify  that  no  money  was  ever  paid  to  me  by  W.  H.  Malone  or  any  other 
person  on  a  sale  made  by  me  of  a  Rail  Road  engine  and  coaches,  sold  under  ex 
ecution  on  the  judg  uent  of  Hiram  Kelley  vs.  Western  North  Carolina  Railroad- 
Company. 

My  return  can  be  seen  on  Judgment  Docket  of  McDowell  county,  to  Fall 
Term,  1871,  Page  151. 

Oct.  3d,  1881.  A.  H.  Simmons. 

Test.  :    M.  E.  Carter. 
Iredell  Judgment  Docket, 

Execution  to  Spring  Term  1871,  Page  412. 
Judgment  1st  May,  1871,  Principal  $200,  Cost  $63.10. 

Doeketed  29th  Nov.,  1871. 

Bmcution  Issued, 

In  pursuance  of  notice  heretofore  duly  given,  I,  this  the  6th  day  Jan.  1872J 
at  the  Court  House  door  in  the  county  of  Iredell,  have  this  day  sold  the  fran- 
chise, with  all  the  rights  and  privileges  thereof,  and  all  the  property  &c. ,  per- 
taining  therewith,  by  law  of  the  within  named,  the  Western  North  Carolina 
Rail  Road  Company,  to  satisfy  the  within  Jlfa.,  R.  Y.  McAden  became  the 
last  and  highest  bidder  for  the  same  by  bidding  the  amount  of  this  the  within 
execution  and  costs  thereon,  to- wit. :  the  sum  of  two  hundred  and  eighty  dol- 
lars and  forty-six  cents ;  into  office  $271.75,  amount  of  this  Judgment  and 
Court  cost.  W.  F.  Wosson,  Sh'ff . 

Debt,  interest  and  cost  forwarded  by  express  to  the  Clerk  of  the  Superior 
Court  of  McDowell  county,  January  16th,  1872— $271.30. 

C.  L.  Summers,  C.  S.  C. 

Note. — The  Sheriff's  deed  to  R.  Y.  McAden,  founded  on  the 
foregoing  record,  may  be  seen  on   page  of  this   Compen- 

dium. 


(*3°) 


(*30 


■''.■ .  . 


(i32) 


Pe-rition- 


TRANSCRIPT  FROM  McDOWELL  COUNTY— THOM- 
AS Y.  GREENLEE,  AND  THOMAS  Y.  GREENLEE", 
TRUSTEE  OF  M.  M.  GREENLEE,  AGAINST  THE 
WESTERN  N.  C.  R.  R.   COMPANY. 


State  of  North  Carolina,         ^  Fifth  Monday   after  the  4th  Monday  in 
McDowell  County.)        September,  i860. 

Being  the  29th  of  October  in  said  year. 

Be  it  known  that  a  Court  of  Pleas  and  Quarter  Sessions  was  opened  and  held 
for  the  county  aforesaid,  at  the  Court  House  in  Marion,  present  and  presiding, 
the  worshipful  justices  to-wit  : 

B.  F.  Bynum,  Chm'n., 
Elijah  Morgan, 
James  Finley. 
At  which  said  term  the  following  proceedings  were  had  and  done,  to-wit  : 
At  said  term  the  following  petition  whs  handed  in  to   Court,    which  is  in  the 
words  and  figures  following,  to-wit  : 

North  Carolina,  )   Court  of  Pleas  and  Quarter  Sessions, 

McDowell  County.)       Fall  Term,  1S60. 

To  the  Worshipful,  the  Justices  of  said  Court  : 

The  petition  of  Thomas  Y.  Greenlee  against  the  Western  No.  Ca.  Rail- 
road Company  : 

Your  petitioner  humbly  complaining,  showeth  to  your  Worships  that  he  is 
seized  and  possessed  of  a  valuable  tract  of  land  in  said  county,  lying  on  the  wa- 
ters of  Catawba  River,  and  that  the  defendant,  the  Company  aforesaid,  is  au- 
thorized in  its  charter  to  construct  a  railroad  from  the  town  of  Salisbury  to  the 
French  Broad  River,  near  Asheville,  and  that  the  said  Company  has  so  located 
said  road  on  the  lands  of  your  petitioner  as  to  endamage  him  very  seriously. 

Your  petitioner  therefore  prays  your  Worships  to  appoint  a  board  of  com- 
missioners to  ascertain  and  assess  the  damage  done  him  under  the  provisions 
of  the  charter  aforesaid,  and  that  a  copy  of  this  petition,  with  a  subpoena,  be 
served  upon  A.  M.  Powell,  the  President  of  the  said  Company,  to  appear  at 
the  next  term  of  this  Court,  to  be  held  at  the  Court  House  in  Marion,  on  the 
5th  Monday  after  the  4th  Monday  in  December,  and  answer  the  premises,  and 
your  petitioner  shall  ever  pray,  &c.  Dickson,  Att'y. 

Upon  the  back  of  said  petition  is  the  following,    to-wit :     Thomas 
Y.  Greenlee  vs.  VV.  N.  C.  R.  R.  Company.     Petition,  McDowell  coun 
ty  Court,  Fall  Term,  1860.  Dickson,  Att'y. 


(  i33) 

Said  petition  being  in  Court  as  aforesaid  was  placed  upon  the 
Appearance  Docket,  and  stands  thus  : 

Thomas  Y.  Greenlee,  )  (Dickson.) 

vs.  >  Petition. 

Western  North  Carolina  Railroad  Company.  ) 

At  which  said  term  the  following  order  was  made  :  Drier  for  pro- 

cess. 
Ordered  that  process  issue  as  prayed  for. 

Said  cause  was  continued  until  the  next  term  of   this  Court,   and 

there  stands  thus,  being  Winter  Term,  1861. 

Thomas  Y.  Greenlee,  )  (Dickson.) 

vs.  j-      Petition — Copy    of    Subpoena 

Western  N.  Carolina  Railroad  Company.     )       served. 

At  which  said  Term  the  following  subpoena  was  returned  into 
Court,  which  is  in  the  words  and  figures  following,  to-wit ; 

State  of  North  Carolina  ; 

To  the  Sheriff  of  Catawba  County — Greeting  : 

You  are  hereby  commanded  to  summon  A.  M.  Powell,  President  of  Western 
North  Carolina  Railroad  Company,  personally  to  be  and  appear  before  the 
Justices  of  our  Court  of  Pleas  and  Quarter  Sessions,  at  the  next  Court  to  be 
held  for  our  said  county  of  McDowell,  at  the  Court  House  in  Marion,  on  the 
5th  Monday  after  the  4th  Monday  in  December  inst.,  then  and  there  answer 
the  petition  of  Thomas  Y.  Greenlee,  now  filed  in  said  Court,  a  copy  of  whicn  SuDPoena- 
accompanies  this  subpoena,  which  you  will  deliver  to  said  President.  And  this 
you  shall  in  no  wise  omit,  under  the  penalty  prescribed  by  law. 

Witness,  Alfred  M.  Finley,  Clerk  of  our  said  Court,  at  office,  the  5th  Mon- 
day after  the  4th  Monday  in  September,  i860,  and  in  the  85th  year  of  our  In- 
dependence.    Issued  8th  December,  i860. 

[Seal.]  A.    M.  Finley,   Clerk. 

Upon  the  back  of   said  subpoena,  is  the  following :     Thomas  Y. 

Greenlee  vs.   Western   N.    C.  R.    R.    Co.     Subpoena  to   McDowell 

County  Court,  Winter  Term,  1861 :  service  of  sub- 

poena. 
To  hand  the  14th  December,   i860,   executed   the    18th  December,    i860,  by 

summoning  J.  E.  Robinson,  sheriff,  and  delivering  a  copy  of  petition. 

J.  E.  Robinson,  Sheriff. 

Said  cause  was  continued  until  the  next  Term  of  this  Court,  being 
Spring  Term,  1861,  and  there  stands  thus : 

Thomas  Y.  Greenlee,  )  (Dickson.) 

vs.  >-  Petition. 

Western  North  Carolina  Railroad  Company.  ) 

And  thereupon  the  cause  was   regularly   continued    from    term  Cause 
(without  any  action  had  thereon)  up  to  summer  term,  1868,  when  to  Sup'r.  C't.d 


(*34) 

by  an  act  of  the  Legislature  the  cause  was  transferred  from  the  late 
county  Court  of  McDowell  county  to  the  Superior  Court  of  Mc- 
Dowell county. 

State  of  North  Carolina,  )  The  10th  Monday  after  the  3rd  Monday  in  Sept- 
McDowell  County.  -    ember,  A.  D.,  1868,  being  the  30th  of  November 
)    in  said  year. 

Be  it  remembered  that  a  Superior  Court  of  Law  is  this  day  opened  and  held, 
in  and  for  the  county  of  McDowell,  at  the  Court  House  in  Marion;  present  and 
presiding,  and  holding  said  Court,  the  Honorable  Anderson  Mitchell,  Judge  of 
said  Court. 

The  said  cause  being  returned  into  Court  as  aforesaid  was  placed 

upon  the  civil  issue  docket  and  there  stands  thus  : 

Thomas  Y.  Geeenlee,  )  (Dickson. 

VS.  j.  Petition. 

Western  North  Carolina  Railroad  Companny. )  (B.  S.  G.,  A.  C.  A. 

Said  cause  was  regularly  continued  from  term  to  term   without 

any  action  being  had  thereon  until  Spring  Term,  1870,   being    the 

2nd  Monday  after  the  3rd  Monday  in  April,  1870,  the    Hon.  J.  L. 

Henry,  Judge  presiding;  when   the  following   proceedings   were 

had  and  done,  to-wit  : 

Thomas  Y.  Greenlee,  "]  (Dickson. 

VS.  J-  Petition. 

Western  North  Carolina  Railroad  Comapany.  J  (B.  S.  G.,  A.C.  A. 

It  is  ordered  by  the  Court  with  the  consent  of  the  parties  that  all  matters  of 
difference  in  this  cause  be  referred  to  C.  L.  S.  Corpening,  J.  B.  Burgin,  Thomas 
CtoUCominersd  Lytle.   J.   A.    Coxey,    and  Noah  Souther,  to  assess  the  damages  and  report  to 
the  next  term  of  this  Court. 

Said  cause  was  then  continued  until  the  next  term  of  this  Court 
being  Fall  Term,  1870,  and  there  stands  thus  : 

Thomas  Y.  Geeenlee,  ~)  (A.  M.  E. 

VS.  >  Petition. 

Western  North  Carolina  Railroad  Company.  J  (B.  S.  G.,     A.  C.  A. 

Said  cause  was  continued  under  former   reference   to   the    next 
term  of  this  Court  being  Spring  Term,  187 1,  and  there  stands  thus: 

Thomas  Y.  Geeenlee,  "]  (A.  M.  E. 

VS.  [-Petition. 

Western  North  Carolina  Railroad  Company.  J  (B.  S.  G.,     A.  C.  A. 

Said  cause  was  continued  until  thejnext  term  of  this  Court  under 

former  order  being  Fall  Term,  1871,  and  there  stands  thus  : 

Thomas  Y.  Greenlee,  )  (A.  M.  E. 

VS.  >  Petition. 

The  Western  North  Carolina  Railroad  Company.)  (B.  S.  G.,  A.  C.  A. 


(i35) 

Said  cause  was  continued  until  the  next  term  of  this  Court  being 
Spring  Term,  1872,  and  there  stands  thus  : 

Thomas  Y.  Greenlee,  )  (A.  M.  E. 

VS.  [  Petition. 

The  Western  North  Carolina  Railroad  Company. )  (B.  S.  G.,  A.  C.  A. 

At  which  said  term  the  following  proceedings  were  had  and 
done,  to-wit :  Report  of  commissioners  filed  which  is  in  the 
words  and  figures  following,  to-wit : 

STiTE  "2MfSE£  jSuperiorCour,. 

We,  the  undersigned  commissioners,  appointed  by  the  order  of  the   Superior 
Court,  made  in  the  case  of  Thomas  Y.    Greenlee  against  the  Western  North  R       tore  m- 
Carolina  Railroad  company,  to  inquire  and  assess  the  damages,  sustained  by  the   missioners. 
plaintiff  by  reason  of  the  said  railroad  track,  and  the  construction  of  the  same, 
through  plaintiff's  land,  and  report  to  this  Court,  have  had  the   matter  under 
consideration,  and  have  viewed  the  premises,  and  now  report  as    follows  :   we 
find  that  the  plaintiff  is  the  owner  of  a  tract  of  land,   in  fee  simple,  upon  which 
he  resides,  and  is  likewise  the  owner  of  another  track  as  the  trustee  of  Martha 
M.  Greenlee,  situated  immediately  below  his  own  tract,    commencing  at  the 
river  at  the  bridge,  and  extending  down  the  railroad  tract  to  the   tank  on  the 
said  road,  we  find  that  the  damages  sustained  by  the  plaintiff  by  reason  of  said 
railroad  track  and  construction,  running  from  the  river  at  the  bridge  through  ihe 
plaintiff's  land  west  to  his  line  to  be  fifteen  hundred  dollars,  and  we  further  find 
that  the  damages  sustained  by  the  plaintiff  as  trustee  of  Martha  M.   Greenlee, 
commencing  at  the  bridge  on  the  river  and  running  east  with  the  railroad  to  the 
line  of  said  track  near  the  railroad  tank  by  reason  of  the  said  railroad  and  the 
construction  thereof,  to  be  the  sum  of  seven  hundred  dollars. 
Given  under  our  hands  and  seals,  this  20th  March,  1872. 

[Seat.,]  Thomas  Lytle, 

[Seal,]  J.  A.  Coxey, 

[Seal,]  N.  Souther, 

[Seal,]  Joe  B.  Burgin. 

Thomas  Y.  Greenlee,  ) 

vs.  [■  Petition. 

The  Western  North  Carolina  Railroad  Company.     ) 

Judgment  according  to  award,  for  the   sum   of   ($1,500.00,)   with  Judsment- 
interest  on  the  same  from  the  25th   day  of  March,    1872,  till  paid, 
and  cost.     Judgment  of  the  Court  accordingly,  for  whisht  execution 
is  awarded. 

I  Thomas  Y.  Greenlee,  Trustee  of  Martha  M.  Greenlee,  "| 

j  against  }■  Petition. 

I  The  Western  North  Carolina  Railroad  Company.         J 

Judgment. 
Judgment  according  to  award,  for  the  sum  of  $700.00,  (seven  hun- 


IO 

6o 

6 

5« 

i 

00 

IO 

00 

21 

00 

I 

00 

6 

00 

6 

00 

6 

00 

6 

10 

(136) 

dred  dollars,)  with  interest  on  the  same  from  the  25th  day  of  March, 
1872,  till  paid,  and  cost. 

Judgment  of  the  Court  accordingly,  for  which  execution  is  award- 
ed. 

No  execution  issued  until  Fall  Term,  1873. 

The  following  is  the  judgment  and  costs  on  the  Execution  Dock- 
et, Fall  Term,  1873 : 

Judgment $1,500.00,  with  interest  on  the  same  from 
the  25th  day  of  March,  1S72,  till  paid,  and  costs. 
A.  M.  Finley,  C.  C.  C, 
D.  O.  H.  W.  Gillespie,  C.  S.  C, 
County  Tax, 
Thomas  Y.  Greenlee,  Att'y  A.  M.  Erwin, 

Against  Fi  fa.         Sh'ff  A.  H.  Simmons, 

The  Western  North  Caroli-     "    J.  E.  Robeson, 
na  Railroad  Company.  Com'r  Thos.  Lytle, 

"       Noah  Souther, 
"      J.  B.  Burgin, 
•'      J.  A.  Coxey, 

$  74  20 
Issued  1st  May.  1873. 

And  thereupon  an  execution  issued,  which  is  in  the  words  and  fig- 
tr-es  following,  to-wit : 

The  State  of  Noeth  Caeolina  ; 

To  the  Sheriff  of  McDowell  County, — Greeting  : 

We  command  you,  that  of  the  goods  and   chattels,   lands   and  tenements,  of 
the  Western  North  Carolina  Railroad  Company,  if  to  be  found  in  your  county, 
you  cause  to  be  made  the  sum  of  $1,500.00,  (fifteen  hundred  dollars,)  with  inter- 
Execution    to  est  on  the  same  from  the  25th  day  of  March,  1872,  till  paid,   and   cost,   which, 
McDowell  co. 

lately  in  our  Superior  Court  for  the  County  of  McDo-vell,  was   adjudged  to  be 

due  Thomas  Y.  Greenlee  for  debt,  besides  the  further  sum  of  seventy-four  dol- 
lars and  twenty  cents,  for  cost  and  charges  in  said  suit  expended  ;  whereof,  the 
said  Railroad  Company  is  liable,  as  appears  to  us  of  record.  And,  have  you 
the  said  moneys,  besides  your  fees  for  this  service,  before  our  said  Court  at  Ma- 
rion, on  the  4th  Monday  in  August  next,  then  and  there  to  render  to  the  said 
Court  the  debt  and  cost  and  charges  aforesaid.  Herein  fail  not,  and  have  you 
then  and  there  this  execution.     Issued  the  1st  day  of  May,  1S73. 

D.  O.  H.  W.  Gillespie, 
Clerk  of  the  Superior  Court  of  McDowell  County. 

Upon  the  back  of  said  execution  is  the  following  endorsement  : 
Thomas  Y.  Greenlee  against  the  Western  North  Carolina  Railroad  company 


Fi  Fa.   returnable  to  Fall  £Term,   1873,  McDowell  Superior  Courts     Received 
May  1st,  1873..  J.  G.  Neal,  Sheriff. 

Due  search  made,  no  goods,  chattels,  lands  or  tenements  found  to  satisfy  this 
Fi.  Fa.  J.  G.  Neal,  Sheriff.      No  goods. 

The  following  is  the  cost  and  judgment  on  the  back  of  this 
execution  : 

Judgment  $1,500.00  with  interest  on  the  same  from  the  25th  day  of  March, 
1872,  till  paid  and  cost. 

A.  M.  Finley,  C.  C.  C,  $10  60 

D.  O.  H.  W.  Gillespie,  C.  S.  C,  6  50 

County  Tax,  1  00 

Attorney,  A.  M.  Erwin,  10  00 

Sheriff  A.  H.  Simmons,  21  00 

Sheriff  J.  E.  Robeson,  1  00 

Commissioners,  Thomas  Lytle,  6  00 

J.  A.  Coxey,  6  10 

"             Noah  Souther,  6  00 

Jos.  B.  Burgin,  6  00 

$  74  20 
Thereupon  an  alias  execution  issued  returnable  to   Spring  Term 
of  McDowell  Superior  Court  which  is  in  the  words   and    figures 
following,  to-wit : 

State  of  Noeth  Caeolina, 

To  the  Sheriff  of  McDowell  County,  Greeting  : 
We  command  you  that  of  the  goods  and  chattels,  lands  and  tenements  of  the 
Western  North  Carolina  Railroad  company,  if  to  be  found  in  your  county,  you 
cause  to  be  made  the  sum  of  fifteen  hundred  dollars  with  interest  on  the  same 
from  the  25th  day  of  March,  1872,  till  paid  and  cost,  which  lately  in  our  Superior  Aiias  execut'n 
Court  for  the  county  of  McDowell  was  adjudged  to  be  due  Thomas  Y.  Greenlee  *°  McDowell 
for  debt,  besides  the  further  snm  of  seventy-four  dollars  and  seventy-five  cents 
for  costs  and  charges  in  said  suit  expended  whereof  the  said  company  is  liable 
as  appears  to  us  of  record;  and  have  you  the  said  moneys  besides  your  fees  for 
this  service  before  our  said  Court  at  Marion  on  the  4th  Monday  in  March  next, 
then  and  there  to  render  to  the  said  Court  the  debt  and  the  charges  aforesaid, 
herein  fail  not,  and  have  you  then  and  there  this  execution  issued  the  19th  day 
of  February,  1874. 

D.  O.  H.  W.Gillepise, 
Clerk  of  the  Superior  Court  of  McDowell  county. 

Upon  the  back  of  said  execution  is  the  following  endorsement, 
to-wit  :  No.  i. 

Thomas  Y.  Greenlee  against  the  Western  North  Carolina  Railroad  company. 
Fi  Fa  returnable  to  Spring  Term,  1874,  McDowell  Superior  Court;  received 
February  19th,  1874.  J.  G.  Neal,  Sheriff, 


N        dg  Due  search  made,  nothing  found  to  satisfy  this  fi  fa  vvith,  March  23rd,    1874. 

*  °  g°°    '  J.  G.  Neal,  Sheriff. 

Also  the  following  is  the  judgment  and  cost  endorsed  on  the  bac 
of  said  execution  : 


' 


Judgment  $1,500.00  with  interest  on  the  same  from  25th  day  of  March,  1872, 
till  paid  and  cost. 

A.  M.  Finley,  C.  C.  (*,  $  io  6o 

D.  O.  H.  W.  Gillespie,  C.  S.  C,  6  95 

County  Tax,  1   00 

Att'y  A.  M.  Erwin,  10  00 

Sh'ff  A.  H.  Simmons,  21  00 

'"     J.  E.  Robeson,  1  00 

Com'r  Thos.  Lytle,  6  00 

"'      J.  A.  Coxey,  6  10 

"       Noah  Souther,  6  00 

"       J.  B.  Burgin,          •  6  00 


*  74  75 

Thereupon  an  alias  execution  issued  returnable  to  Fall  Term,  1874, 

of  said  Court,  which  is  in  the  words  and  figures  following,  to  wit : 

State  of  North  Carolina  ; 

To  the  Sheriff  of  McDowell  County, — "Greeting  : 

We  command  you,  that  of  the  goods  and  chattels,  lands  and  ten  ements,  of 
the  Western  North  Carolina  Railroad  Company,  if  to  be  found  in  your  county, 
Alias  execu'a.  you  cause  to  be  made  the  sum  of  $1,500.00.  (fifteen  hundred  dollars.)  with  inter- 
est on  the  same  from  the  25th  day  o:"  March,  1S72,  till  paid,  and  cost,  which, 
lately  in  our  Superior  Court  for  the  County  of  McDowell,  was  adjudged  to  be 
due  Thomas  Y.  Greenlee  for  debt,  besides  the  further  sum  of  $75.10,  seventy-five 
dollars  and  ten  cents,  for  cost  and  charges  in  said  suit  expended  ;  whereof,  the 
said  Company  is  liable,  as  appears  to  us  of  record.  And,  have  you 
the  said  moneys,  besides  your  fees  for  this  service,  before  our  said  Court  at  Ma- 
rion, on  the  4th  Monday  in  August  next,  then  and  there  to  render  to  the  said 
Court  the  debt  and  cos's  and  charges  aforesaid.  Herein  fail  not,  and  have  you 
then  and  there  this  execution. 

Issued  the  13th  day  of  May,  1S74. 

D.  O.  H.  W.  Gillespie, 
Clerk  of  the  Superior  Court  of  McDowell  Countv. 

The  following  is  the  endorsement  on  the  back  of  said  execution 
to-wit:  No.  36. 

Thomas  Y.  Greenlee  against  the  Western  North  Carolina  Railroad  company 
Fi  fa.  returnable  to  Fall  Term,  1874,  McDowell  Superior  Court;  received  May 
15th,  1874.  J.  G.  Neal,  Sheriff. 


(  *39  ) 

".  The  following  is  the  cost  endorsed  on  the  back  of  said   execution. 

Judgment  $1,500.00,  with  interest  on  the  same  from  the  25th  day  of 

March,  1872,  till  paid,  and  cost : 

A.  M.  Findley,  C  C.  C,  $10  60 

D.  O.  H.  W.  Gillespie,  C.  S.  C,  7  40 

County  Tax,  1  00 

Att'y  A.  M,  Erwin,  10  00 

Shff.  A,  H.  Simmons,  21  00 

"    J.  E.  Robinson,  1  00 

Com,  Thomas  Lytle,  6  00 

;<    Noah  Souther,     •,.  6  00 

"    J.  B  Burgin,  6  00 

"    Coxey,  6  10 

$75.10 
Also  the  following  is  the  Sheriff's  return  on  said  execution : 

Due  search  made,  nothing  found  to  satisfy  this  Fi  fa.  with,  August  24th,  1874.  No  goods. 

J.  G.  Neal,   Sheriff. 

And  thereupon  an  alias  execution  issued  returnable  to  Spring 
Term,  1875,  of  McDowell  Superior  Court,  which  is  in  the  words  and 
figures,  following,  to- wit : 

State  of  North  Carolina  ; 

To  the  Sheriff  of  McDowelf  County, — Greeting  : 

We  command  you,  that  of  the  goods  and  chattels,  lands  and  tenements,  of 
the  Western  North  Carolina  Railroad  Company,  if  to  be  found  in  your  county, 
you  cause  to  be  made  the  sum  of  fifteen  hundred  dollars,  ($1,500.00,)  with  in- 
terest on  the  same  from  the  25th  day  of  March,  1872,  till  paid,  and  cost,  which,  Alias  execu'n. 
lately  in  our  Superior  Court,  for  the  county  of  McDowell  was  adjudged  to  be 
due  Thomas  Y.  Greenlee,  for  debt,  besides  the  further  sum  of  seventy-five  dol- 
lars and  45  cents  for  cost  and  charges  in  said  suit  expended  ;  whereof,  the  said 
Company  is  liable,  as  appears  to  us  of  record.  And  have  you  the  said  moneys 
besides  your  fees  for  this  service,  before  our  said  Court  at  Marion,  on  the  4th 
TSlonday  in  March  next,  then  and  there  to  render  to  the  said  Court,  the  debt 
and  the  costs  and  charges  aforesaid.  Herein  fail  nofa^and  have  you  then  and 
there  this  execution.     Issued  the  21st  day  of  October,  1874. 

D.  O.  H.  W.  Gillespie, 
Clerk  of  the  Superior  Court  of  McDowell  County, 

By  A.  Burgin,  Dep.  Clerk. 

Upon  the  back  of  said  execution  is  the  following  endorsement, 
to -wit : 


(140) 

Judgment  $1,500.00,  with  interest  on  the  same  from  the  25th  day 

of  March,  1872,  till  paid,  and  cost. 

A.  M.  Finley,  C.  C.  C,  $io  6o 

D.  O.  H.  W.  Gillespie,  C.  S.  C,  7  83 

County  Tax  1  00 

Att'y   A.  M.  Erwin,  10  00 

Sh'ffA.  H.  Simmons,  21  00 

"     J.  E.  Robinson,  1  00 

Com'r  Thomas  Lytle,  6  00 

"       J.  A.  Coxey,  6  10 

"        Noah  Souther,  6  00 

"       Joe  B.  Burgin,  6  00 

I  75  45 
No.    105.    Thomas  Y.  Greenlee  against  the  Western  North  Carolina  Railroad 
Company,  Fi  fa.,  returnable  to  Spring  Term,  1875,  McDowell  Superior  Court. 

Received  October  22nd,  1874. 

No  goods.  Due  search  made,  nothing  found  to  satisfy  this  Fi  fa.,  with  March  22nd,  1875. 

Fee  50  cts.  J.  G.  Neal.  Sheriff. 

Thereupon  an  alias  execution  issued,  returnable  to  Fall  Term, 
1875,  of  McDowell  Superior  Court,  which  is  in  the  words  and  fig- 
ures following,  to-wit  : 

State  of  North  Carolina  ; 

To  the  Sheriff  of  McDowell  County — Greeting  : 

We  command  you,  that  of  the  goods  and  chattels,  lands  and  tenements,  of  the 
Alias  execu'n.  Western  North  Carolina  Railroad  Company,  if  to  be  found  in  your  county, 
you  cause  to  be  made  the  sum  of  fifteen  hundred  dollars,  which,  lately  in  our 
Superior  Court,  for  the  county  of  McDowell,  was  adjudged  to  be  due  Thomas 
Y.  Greenlee  for  debt,  besides  the  further  sum  of  seventy -four  dollars  and  ninety 
cents  for  cost  and  charges  in  said  suit  expended,  whereof  the  said  defendant  is 
liable,  as  appears  to  us  of  record.  And  have  you  the  said  moneys,  besides  your 
fees  for  this  service,  before  our  said  Court  at  Marion,  on  the  4th  Monday  in 
August  next,  then  and  there  to  render  to  the  said  Court  the  debt  and' the  costs, 
and  charges,  aforesaid.  Herein  fail  not,  and  have  you  then  and  there  this  exe- 
cution.    Issued  the  iSth  0y  of  May,  1S75. 

D.  O.  H.  W.  Gilltcspie,- 
Clerk  Superior  Court,  McDowell  County. 

Upon  the  back  of  said  execution  is  the   following   endorsement, 

to- wit : 

Judgment  $1,500.00,  with    interest  on   the    same   from  the  25th 


day  of  March,  1872,  till  paid,  and  cost  : 

A.  M.  Finley,  C.  C.  C,  $10  60 

D.  O.  H.  W.  Gillespie,  C.  S.  C,  8  20 

County  Tax,  1  00 

Atty.  A.  M.  Erwin,  10  00 

Shff.  A.  H.  Simmons,  21  00 

'•    J.  E.  Robertson,  1  00 

Commissioner  Thomas  Lytle,  6  00 

"           J.  A.  Coxey,  6  10 

"           Noah  Souther,  6  00 

"           J.  B.  Burgin,  6  00 

$74  90 

No.  180.  ,( 

Thomas  Y.  Greenlee  against  the  "Western  North  Carolina  Railroad  company 

Fi  Fa.  returnable  to  Fall  Term,  1875,  McDowell  Superior  Court;   received  May 

28th  1875. 
Due  search  made,  nothing  found  to  satisfy  this  fi  fa  with;  August  24th,  1875.    No  goods. 

J.  G.  Neal,  Sheriff. 

Thereupon  an  alias  execution  issued  to  Buncombe  county,  return' 
ftble  to  Spring  Term,  1876,  of  McDowell  Superior  Court,  which  is 
in  the  words  and  figures  following,  to-wit : 

State  of  Noeth  Carolina. 

To  the  Sheriff  of  Buncombe  county,     Greeting: 

We  command  you,  that  of  the  goods  and  chattels,  lands  and  tenements  of  the 

Western  North  Carolina  Railroad  Company,  if  to  be  found  in  your  county,  you 

cause  to  be  made  the  sum  of  fifteen  hundred  dollars,  with  interest  on  the  A]jas  execut'n 

same  from  the  25th  day  of  March,  1872,  till  paid  and  cost,  which  lately  in  our  Su-    t0  Buncombe 

*  countv 

perior  Court,  for  the  county  of  McDowell,  was  adjudged  to  be  due  Thomas  Y. 

Greenlee,  for  debt,  besides  the  further  sun  of  seventy-seven  dollars  and  sixteen 

cents  for  costs  and  charges  in  said  suit  expended,  whereof  the  said  Western  North 

Carolina  Railroad  company  is  liable  as  appears  to  us  Of  record.     And  have"  you 

the  said  moneys,  besides  your,  fees  for  this  service,  before  our  said  Court  at 

Marion,  on  the  4th  Monday  in  March  next,  then  and  there  to  render  to  the    said 

Court  the  debt  and  the  costs  aud  charges  aforesaid.     Herein  fail  nOt  and  have  you 

then  and  there  this  execution.     Issued  the  6t  day  of  January,  1876. 

[Seal.]'  D.  O.  H.  W.  Gillespie, 

Clerk  of  the  Superior  Court  of  McDowell  County  I 

Upon  the  back  of  said  execution  is  the  following  endorsement  : 
to-wit  : 

Judgment  $1,500.00,  with  interest  on  the  same  from  the  25th  day  of  March, 
1$72, .  till  paid  and  ;coSt. 

A.  M.  Finley,  C.  C.  C,  $i0  6fr 

D.  O.  H.  Wl  Gillespie,  C.  S.  C,  fr  46 


(MO 

County  Tax,  1  00 

Atty.  A.  M.  Erwin,  10  00 

Shff.  A.  H.  Simmons,  21  00 

"    J.  E.  Robertson,  '    1  00 

Commissioner  Thomas  Lytle,  6  00 

J.  A.  Coxey,  6  10 

"           Noah  Souther,  6  00 

"          J.  B.  Burgin,  6  00 

$77  16 
No.  204.     Thomas  T.  Greenlee  against  the  Western  North  Carolina  Railroad 
company,  Fi  fa.    to  Spring  Term,    1876,    McDowell  Superior  Court;    received 
January  6th,  1876.  J.  M.  Young,  Sheriff. 

I  hereby  levy  this  execution  on  the  franchise,  road-bed  and  right  of  way,  su- 
Levy  by  Sher-  perstructure  and  all  property  attached,  and  appurtenant  to  the  franchise  of  the 
iff  of  Bunc'e.  Western  No^h  Carolina  Railroad  company,  this  January  6th,  1876. 

J.  M.  Young,  Sheriff. 

After  due  advertisement  and  notice  to  defendant  according  to  law,   I  sold  at 
the  Court  House  door  in  Asheville,  Buncombe  county  at  public  auction  to  the 
cutiou.         *  highest  bidder  for  cash,  on  Monday  the  7th  day  of  February,  1876,  Jthe  franchise, 
road-bed,  right  of  way,  superstructure,  and  all  property  attached,    and  appur- 
tenant to  the  franchise  of  the  Western  North  Carolina  Railroad  company,  Thomas 
D.  Carter,  being  the  last  and  highest  bidder,   he  bidding  full   amount  of  the 
Franchise  &c  execution,  and  all  costs,  and  agreeing  to  take  his  franchise,    &c,    for  the  entire 
sold  to  T.  D.  period  of  its  existence,  retain  my  fees  and  commissions,  $50.00,  pay  into  office, 
$77.16,  costs,  (see  assignee  of  the  plaintiffs,)  receipt  on   file  for  principal  and 
interest,  $1,876.00,  this  February  7th,  1876.  J.  M.  Young,  Sheriff. 

Received  from  J.  M.  Young,  Sheriff,  eighteen  hundred  and  forty-five  dollars 
in  full  of  principal  and  interest  on  this  execution,  February  7th,  1876. 

T.  D.  Carter, 
Assignee  of  Judgment. 

State  of  North  Carolina,) 
McDowell  County. \ 

I,  D.  O.  H.  W.  Gillespie,  Clerk  of  the  Superior  Court  for  the 
County  of  McDowell  and  State  aforesaid,  do  hereby  certify  that 
the  foregoing  is  a  true,  full  and  perfect  transcript  of  the  proceedings 
had  and  done  up  to  the  rendition  of  the  judgment,  and  a  full  true 
and  perfect  transcript  of  all  the  proceedings  had  on  said  judg- 
ment, since  the  rendition  of  the  same,  as  appears  now  on  record 
in  my  office  in  the  case  wherein  Thomas  Y.  Greenlee  is  Plaintiff' 
and  Trustee,  and  the  Western  North  Carolina  Railroad  Company 
is  Defendant. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and    affixed 


(  H3.) 

the  seal  of  said  Court  at  office  in  Marion,  this  15th  day  of  October, 
1881.  [Seal.)  D.  O.  H.  W.  Gillespie, 

Clerk  Superior  Court,  McDowell  County. 


Marion,  Oct.  5,  1881. 

I  state  that  I  had  a  judgment  against  the  Western  North  Carolina  Railroad 
for  $1,500,  dated  in  1S72,  taken 'in  McDowell  Superior  Court.  Also  one  judg- 
ment in  same  Court  in  my  name  as  Trustee  of  Martha  M.  Greenlee,  for  $ 700, 
dated,  25th  March,  1S72. 

I  authorized  and  employed  Col.  B.  S.  Gaither,  an  attorney,  to  look  after  my 
interests  and  represent  me,  il  necessary,  in  the  case  of  Sibley  et  al..  vs.  Western 
North  Carolina  Railroad,  and  others,  in  the  U.  S.  District  and  Circuit.  Court, 
and  he  did,  by  virtue  of  this  authority,  have  me  represented  in  said  suit . 

T.  Y.  Greenlee. 

Witness  :     W.   W.  Flemming. 

N.  B. — Sheriff's  deed  to  T.  D.  Carter  does  not  appear  on  the 
registration  books. 


(I44) 


(«45) 


(i46J 


JOHN  RUTHERFORD  AGAINST    THE    WESTERN    NORTH 
CAROLINA  RAILROAD  COMPANY. 


State  of  North  Carolina,     /   Fifth    Monday   after  the  fourth  Monday  in 
McDowell  County.)    June.  i860. 

Being  the  30th  day  of  July  insaid  year. 

Be  it  known  that  a  Court  of  Pleas  and  Quarter  Sessions  was  opened  and 
held  for  the  county  aforesaid,  at  the  Court  House  in  Marion  ;  present  and  pre- 
siding, the  Worshipful  Justices,  to-wit : 

John-  S.  Brown,  Chairman. 
Swan  P.  Burnett, 
Tuos.  J.  Halyburton. 

At  which  said  said  Term  the  following-  proceeding's  were  had  and 
done  : 

At  said  Term  a  petition  was  returned  into  Couvt  in  the  following 
Petition.  words  and  figures  : 

State  of  North  Carotin  a  ;  )   Court  of  Pleas  and   Quarter  Ses- 

McDowell  County.)    sions,  Summer  Term,  1S60. 

To  the  Worshipful  Justices  of  the  Court  of  Pleas  and    Quarter  Ses- 
sions for  McDowell  County,  and  State  of  North  Carolina  : 

The   petition    of   John  Rutherford  against  the  Western  North  Car- 
olina Railroad  Company,  Defendant : 

Tour  petitioner  humbly  complaining,  showeth  unto  your  Wor- 
ships, that  he  is  seized  and  possessed  of  a  tract  or  parcel  of  land 
lying  and  being  in  said  county  of  McDowell,  on  the  waters  of  Shad- 
rack's  Creek,  and  that  the  Western  North  Carolina  Railroad  Compa- 
ny is  authorized  by  the  Charter  to  locate  and  establish  a  Railroad 
from  Salisbury  to  the  French  Broad  River,  and  that  said  Company 
has  so  located  and  surveyed  the  track  of  said  Road  as  to  pass  through 
and  over  the  aforesaid  tract  or  parcel  of  land  belonging  to  your  pe- 
titioner. Your  petitioner  complains  that  the  track  of  said  road,  as 
surveyed  and  located  by  the  officers  of  the  Company,  will  have  a 
long  distance  through  said  lands,  and  will  render  utterly  useless  and 
valueless,  a  very  considerable  portion  of  fertile  bottom  and  other 
lands,  which  have  heretofore  been  very  productive  and  valuable, 
and  in  other  respects  will  greatly  interfere  with  the  conveniences  of 


(  H7  ) 

said  farm.  Your  petitioner  thus  believing  that  he  is  to  be  damaged 
and  injured  by  the  construction  of  said  road,  as  located,  and  being 
desirous  of  having  said  damages  assessed  to  him,  in  the  mode  and 
manner  prescribed  by  the  Charter  of  said  Company,  therefore  prays 
Yuur  Worships  to  appoint  a  board  of  commission  of  valuation,  as 
required  in  such  cases  by  the  Charter,  to  assess  the  damages  which 
your  petitioner  may  sustain  by  reason  of  the  location  of  said  rail- 
road, and  that  they  be  required  to  make  their  report  to  this  Court, 
and  to  the  end  that  the  said  Western  N.  C.  llailroad  Company  may 
be  made  a  party  in  this  petition,  may  it  please  Your  Worships  to 
order  a  copy  of  this  petition,  together  with  a  subpoena,  to  issue  to  the 
President  and  Directors  of  said  Company,  and  that  the  same  be 
served  upon  Robert  C.  Pearson,  President  of  said  Company,  com- 
manding them  or  such  of  them  as  may  be  needful  to  appear  at  the 
next  Term  of  this  Court,  and  answer  this  petition,  &c. ;  and  may  it 
please  Your  Worships  to  grant  your  petitioner  such  other  and  fur- 
ther relief  as  the  premises  may  require,  or  wid  justify,  and  as  in 
duty  buund,  your  petitioner  will  ever  pray. 

(Signed,)  Tob  R.  Caldwell, 

Att'y  for  Petitioner. 

And  thereupon  the  following  order  was  made: 
John  Rutherford 


Petition. 
Western  North  Carolina  Railroad  Company. 

Ordered  that  process  issue  as  praj^ed  for. 

And  thereupon  the  cause  is  continued  to  the  next  Term  of  the 
Court,  to  wit :  On  the  5fch  Monday  after  the  4th  Monday  in  Sep 
tember,  1860.     At  which  last  mentioned  Term,   at  the  Court  House  „ 

'  Order  of  pro 

in    Marion,    before    B.  F.  Bynum,  Chairman,    Elijah    Morgan  and   cess- 
James  Finley,  Worshipfuls  of  said  Court,  the   parties  aforesaid,    by 
their  attorneys  aforesaid,  come  ;   at  which  said  Term    the   following 
was  returned  into  Court : 

State  of  North  Carolina  ; 

To  the  Sheriff  of  Burke  County,— Greeting  : 

You  are  hereby  commanded' to  summon  Robert  C.  Pearson,  President  of  the 
Western  North  Carolina  Railroad  Company,  personally  to  be  and    appear  be-  gUKDOeua 
fore  the  Justices  of  our  Court  of  Pleas  and  Quarter  Sessions    at  the  nest  Court 
to  be  held  for  our  said  county  of  McDowell  at  the   Court-house  in  Marion  on 


(i4S) 

the  5th  Monday  after  the  4th  Monday  in  September  next  ;  then  and  there  to 
answer  the  petition  of  John  Rutherford  now  filed  in  said  court,  a  copy  of  which 
accompanies  this  subpoena  which  you  will  deliver  to  the  said  R.  C.  Pearsonf 
and  return  this  subpoena,  and  this  you  shall  in  no  wise  omit  under  the  penalty 
of  the  law.  Witness  :  Alfred  M.  Finley,  Clerk  of  our  said  court,  at  office,  the 
5th  Monday  after  the  4th  Monday  in  June,  i860,  and  in  the  85th  year  of  our 
Independence. 

Issued  31st  of  August,  i860. 

[Seal.]  (Signed.)  A.  M.  Finley,  Clerk. 

And  upon  the  back  of  the  foregoing  is  the  following  endorsement' 
to  wit :  John  Rutherford  vs.  Western  N.  C.  Railroad  Company, 
subpoena  to  McDowell  county  court,  fall  term,  1860. 

Process  execu-     Executed  by  delivering  a  copy  of  the  petition  to  R.  C.  Pearson,  a 
director  of  the  Western  N.  C.  Railroad,  this  6th  day  of  Sept.,  1860. 

(Signed.)  B.  A.  Berry,  Sheriff, 

And  thereupon  the  cause  was  regularlv  continued  from  term  to 

Cause  reraov  d  L 

to  sup'r  ct.  term  (without  any  action  had  thereon,)  up  to  summer  term  1868, 
when  by  an  act  of  the  Legislature  the  cause  was  transferred  from  the 
lace  county  court  of  McDowell  county  to  the  Superior  court  of  Mc- 
Dowell county. 

State  of  North  Carolina,  )   The  10th  Monday  after  the  3d  Monday  in 
McDowell   County.         f  Sept.,  being  the  30th  of  Nov.jn  said  year. 

Be  it  remembered  that  a  Superior  court  of  law  is  triis  day  opened  and  held 
in  and  for  the  county  of  McDowell,  at  the  Court  House  in  Marion.  Present 
and  presiding  and  holding  said  court,  the  Hon.  Anderson  Mitchell,  Judge  of 
said  court. 

The  said  cause  being  returned  unto  court  as  aforesaid,  was  placed 
upon  the  civil  issue  docket  and  there  stands  thus  : 

John  Rutherford,  J  (T.  R.  C.) 

vs.  >  Petition. 

The  Western  N.  Carolina  Railroad  Company.  ) 

The  parties  aforesaid  by  their  attorneys  aforesaid  come.  And 
thereupon  the  cause  is  continued  to  the  next  term  of  the  Court, 
to-wit  :  on  the  2nd  Monday  after  the  3rd  Monday  in  April,  1869. 
At  which  last  mentioned  term  at  the  Court  House  in  Marion  be- 
fore the  Honorable  J.  L.  Henry,  Judge  of  said  Court,  the  parties 
aforesaid  by  their  attorneys  aforesaid  come,  and  thereupon  the 
cause  is  continued  to  the  next  term  of  the  Court,  to-wit,  on  the 
2nd  Monday  after  the  3rd  Monday  in  September,  1S69,  at   which 


< 


(  H9) 

last  mentioned  term  at  the  Court  House  in  Marion  before  the  Hon- 

rr  ble  R.  H   Cannon,  Judge    of  said   Court,  the  parties    aforesaid 

by  their  attorneys  aforesaid  come,  and  the    cause    is    continued  to 

the  next  term  of  the  Court,  to-wit,  on  the  2nd    Monday    after    the 

3rd  Monday  in  April,  1870,  at  which  last  mentioned  term    at    the 

Court  House  in  Marion  before  the  Honorable  J.  L.  Henry,  Judge 

of  said  Court,  the  parties  aforesaid    by    their   attorneys    aforesaid 

come,  when  the  following  order  was  made  : 

John  Rutherford,  ~) 

Against  >  Petition. 

Western  North  Carolina  Railroad  Company.     ) 

It  is  ordered  by  the  Court  with  the  consent  of  the    parties    tha 
Swan  P.  Burnett,    Thomas  Hemphill,    Allen  Conley,  Joseph  W.  cause  referred 
Hunter  and  Hugh  A.  Tate,  be  appointed  commissioners  to    assess    t0  Com'rs- 
damages  sustained  by  the  petitioner,  and  report  to  the    next   term 
of  this  Court,  and  thereupon  the  cause    is    continued    to   the    next 
term  of  the  Court,  to-wit,  on  the  2nd  Monday  after  the  3rd    Mon- 
day,   in    September,    1870,   at    which    last  mentioned  term  at  the 
Court  House  in  Marion  before  the  Honorable  J.  M.  Cloud,  Judge 
of  said  Court,  the  following  report  was  returned  into  Court,  which 
is  in  the  words  and  figures,  to-wit  : 

State  of  North  Carolina,)  0„^f„,„u„„  iKfV,   10™ 
McDowell  CountyJ  SePtember  15th>  18™- 

We,  the  undersigned  commissioners,  appointed  by  the  Superior  Court  of  Mc- 
Dowell county,  Spring  Term,  1870,  to  assess  the  damages  that  John  Rutherford    y0^rs  r  *  °f 
has  sustained  by  the  Western  North  Carolina  Railroad  company,    have  met  on 
the  lands,  and  after  due  examination,  find  him  damaged  to  the  amount  of  fifteen 
hundred  dollars  above  enhancesments, 

Respectfully  submitted, 

(Signed)  J.  W.  Hunter, 

(Signed)  Thos.  Hemphill, 

(Signed)  H.  A.  Tate, 

(Signed)  Allen  Conley, 

(Signed)  S.  P.  Burnett. 

Sworn  before  me  5th  October,  1870,  as  to  Burnett,  Hunter  and  Conley. 

D.  O.  H.  W.  Gillespie,  C.  S.  C. 
And  thereupon,  the  following  proceedings  were  done,  to-wit  : 

John  Rutherford,  ~) 

Against  V  Petition  for  Damages. 

The  Western  North  Carolina  Railroad  Company.  J 

Report  of  the  commissioners  filed,  and  on  motion    of  plaintiff's   Armed     C°n" 
counsel  confirmed. 


Whrreupon,  it  is  ordered  by  the  Court  that  plaintiff  do  recover 
of  the  defendant  the  sum  of  fifteen  hundred  dollars,  and  the  costs 
to  be  taxed  by  the  Clerk,  and  that  he  have  judgment  and  execu- 
tion thereof. 

The  commissioners  are  allowed  by  the  Court  five  dollars  per 
day  each  to  be  paid  equally  by  the  plaintiff  and  defendant.  They 
are  to  make  out  and  file  their  account  with  the  Clerk  of  the  Court 
of  the  number  of  days  they  were  each  engaged  in  viewing  the 
premises. 

Judgments  Separated. 

John  Rutherford,  ") 

Against  [■ 

The.  Western  North  Carolina  Raih'oad  Company.  J 

Judgment  $1, 500.00,  with  interest  on  the  same  from  the  3rd  day  of  October, 
1870,  till  paid  and  costs. 

D.  O.  H:  W.  Gillespie,  C.  S.  C,  $  9  83 

A.  M.  Finley,  C.  C.  C,  9  35 

County  Tax,  1  00 

Atty.  T.  R.  Caldwell,  10  00 

Shfl.  B.  A.  Berry,  60 

"    A.  H.  Simmons,  5  15 

|33  03 

And  thereupon  execution  issued    returnable   to    Spring   Term, 

1S71,  in  the  following  words  and  figures,  to- wit  : 

State  of  North  Carolina  ; 

To  the  Sheriff  of  Iredell  County, — Greeting  : 

You  are  hereby  commanded  that  of  the  goods  and  chattels,  lands  and  tene- 
ments of  the  Western  North  Carolina  Railroad  company,  if  to  be  found  in  your 
county,  you  cause  to  be  made  the  sum  of  fifteen  hundred  dollars,  with  ^interest  on 
the  same  from  the  3rd  day  of  October,  1870,  till  paid  and  costs,  which  was  lately 
Execution  to  in  our  Superior  Court,  held  for  McDowell  county,  at  the  Court  House  in  Mar- 
ion, adjudged  to  be  due  John  Rutherford  for  debt,  besides  the  further  sum  of 
thirty-three  dollars  and  three  cents  ($33.03)  for  costs  and  charges  in  said  suit 
expended,  whereof  the  said  Western  North  Carolina  Railroad  company  is  liable 
as  appears  to  us  of  record.  And  have  you  the  said  moneys,  besides  your  fees 
for  this  service,  before  our  said  Court  at  Marion  aforesaid,  on  the  2nd  Mon- 
day after  the  3rd  Monday  in  April  next,  then  aud  there  to  render  to  the  said 
Court  the  debt  and  the  costs  and  charges  aforesaid.  Herein  fail  not  and  have  you 
then  and  there  this  execution. 

Witness  D.  O.  H.  W.  Gillespie,  Clerk  of  our  said  Court,  at  office,  the  2nd 
Monday  after  the  3rd  Monday  of  September,  1870. 


Iredell  co. 


(  '50 

Issued  3rd  January,  1871. 

D.  O.  H.  W.  Gillespie, 
Clerk  of  the  Superior  Court  of  McDowell  County. 
And  upon  the  back  of  the  foregoing  execution  is  the    following 
endorsements,  to  wit  : 

No.  64,  John  Rutherford  against  the  Western  North  Carolina  Railroad  com- 
pany, Fi  fa,  returnable  to  Spring  Term,  1871,  McDowell  Superior  Court. 

Judgment  $1,500.00,  with  interest  on  the  same  from  the  3rd  day  of   October, 
1870,  till  paid  and  costs. 

A.  M.  Finley,  C.  C.  C,  $  9  35 

D.  O.  H.  W.  Gillespie,  C.  S.  C,  6  93 

County  Tax.  1  00 

,     Attorney,  T.  R.  Caldwell,  10  00 

Sheriff  B.  A.  Berry,'  60 

"      A.  H.  Simmons,  5  15 

$33.03 
To  hand  January  10th  1871 . 

(Signed.)  W.  F.  Wosson,  Sheriff. 

No  goods,  chattels,  lands  nor  tenements  to  be  found  outside  of  mortgage  to  No  goods, 
satisfy  this  fi  fa. .  (Signed.)  W.  F.  Wosson,  Sheriff. 

Received  six  dollars  and  ninety-three  cents  on  this  bill  of  costs,  my  fee  which 
is  to  run  to  the  use  of  John  Rutherford,  this  the  23rd  January,  1871. 

D.  O.  H.  W.  Gillespie,  C.  S.  C. 

John  Rutherford,                               "1  J.  W.  Hunter,  £  $5  05 

Against                                        I  Thomas  Hemphill,  i  5  05 

The  Western  North  Carolina   Rail  {  H.  A.  Tate,  ^  5  05 

Road  Company.                                    f  Allen  Conley,  i  2  56 

!  S   P.  Burnett,  i  2  90 

J  D.  O.  W.  Gillespie,  C.  S.  C,  |  1  58 

And  thereupon  execution  issued  upon  the  foregoing  bill  of  costs 
— in  the  following  words  and  figures,  to  wit  : 

State  of  North  Carolina  ; 

To  the  Sheriff  of  Rowan  County, — Greeting  : 

You  are  hereby  commanded,  that  of  the  goods  and  chattels,  lands  and  tene- 
ments of  the  Western  North  Carolina  Railroad  company,  if  to  be  found  in  your  Josts. 
county,  you  cause  to  be  made  the  sum  of  ($22  08)  twenty-two  dollars  and  eight 
cents,  which  was  lately  in  our  Superior  Court,  held  for  McDowell  county,  at 
the  Court  House  in  Marion,  adjudged  to  be  due  John  Rutherford  for  costs  and 
charges  in  said  suit  expended,  whereof  the  said  Western  North  Carolina  Rail- 
road company  is  liable  as  appears  to  us  of  record.  And  have  you  the  said 
moneys,  besides  your  fees  for  this  service  before  our  said  Court  at  Marion  afore- 
said on  the  2nd  Monday  after  the  3rd  Monday  in  April  next,  then  and  there  to 
render  to  the  said  Court  the  costs  and  charges  aforesaid.  Herein  fail  not,  and 
have  you  then  and  there  this  sxecution. 


(^52) 

Witness  D,  O.  H.  W.  Gillespie,  Clerk  of  our  said  Court,  at   office,  the  2nc 
Monday  after  the  3rd  Monday  of  September,  1870. 

Issued  13th  of  January,  1871.  \ 

D.  O.  H.  W.Gillepise, 
Clerk  of  the  Superior  Court  of  McDowell  county. 

And   upon  the  back  of  the  foregoing  execution  is  the    following 
endorsonment,  to  wit  : 

No.  65,  John  Rutherford  against  the  Western  North  Carolina  Railroad  com- 
pany, Fi  Fa.  returnable  to  Spring  Term,  1871,  ALcDowell  Superior  Court. 

Com'r  J.  W.  Hunter,,  >£,  5  05 

"       Thos.  Hemphill,  %,  5  05 

"       H.  A.  Tate,  Y±,  5  05 

"       L.  P.  Burnett,  %\  2  90 

"       D.  C.  H.  W.  Gillespie,  C.  S.  C.  1  48 

$  22  08 

No  goods  or  chattels,  land  or  tenements,  outside  of  levies,  to  be  found  in  my 
county  to  satisfy  this  execution. 
1,0  8°ods-  W.  W.  Walten,  Sheriff. 

Gom,r  J.  W.  Hunter,  %,  5  05 

"        Thomas  Hemphill,  ^.  5  05 

The  Western  N.  Carolina")       "        H.  A.  Tate,  £,  5  05 

Railroad  Company,  f       "        Allen  Conly.  £,  2  55 

against  [       "        L.  P.  Burnett,,  £  2  90 

John  Rutherford.  J       "        D.  O.  H.  W.  Gillespie,  C.  S.  C,  1  48 

$  22  08 
Received   of  John  Rutherford  (22.08)  twenty  two  dollars  and  eight  cents  in 
full  of  this  bill  of  costs,  this  the  23d  day  of  6anuary,  1871. 

(Signed.)  D.  O.  H.  W.  Gillespie,  C.  S.  C. 

No,  64  Judgment  carried  to  Fall  Term  1871,  and  there  stands 
thus: 

John  Rutherford,  )  Judgment  $1500.00,  with  interest 

Against  V  on  the  same  from  the  3d  of  Oct. 

W.  N.  C.  Railroad  Company.  )  1870,  until  paid  and  cost 

A.  M.  Finley,  $9.35  ;  D.  O.  H.  W.  Gillespie,  $7.51  ;  County  Tax,  $1  ;  At- 
torney T.  R.  Caldwell,  $10.00  ;  Sheriff  B.  A.  Berry,  60  ;  A.  H.  Simmons, 
$5-I5- 

And  thereupon  execution  issued  upon  the  foregoing  judgment, 
returnable  to  Fall  Term,  1871,  which  is  in  the  following  words  and 
figures : 


t  (153) 

State  of  North  Carolina  ; 

To  the  Sheriff  of  McDowell  County, — Greeting  : 

We  command  you,  that  of  the  goods  and  chattels,  lands  and  tenements,  of  the 
Western  North  Carolina  Railroad  Company,  if  to  be  found  in  your  county, 
you  cause  to  be  made  the  sum  ot  fifteen  hundred  dollars,  and  interest  on  the  Execution  to 
same  from  the  3d  of  October,  1870,  till  paid,  and  costs,  which  lately,  in  our  McU0We  1- 
Superior  Court,  for  the  county  of  McDowell,  was  adjudged  to  be  due  John 
Rutherford  for  debt,  besides  the  further  sum  of  thirty -three  dollars  and  sixty-one 
cents  for  cost  and  charges  in  said  suit  expended,  whereof  the  said  Western  N. 
C.  Railroad  Company  is  liable,  as  appears  to  us  of  record.  And  have  you  the 
said  moneys,  besides  your  fees  for  this  service,  before  our  said  Court  at  Marion, 
on  the  2d  Monday  after  the  3d  Monday  in  September  next,  then  and  there  to 
render  to  the  said  Court  the  debt,  and  the  costs  and  charges,  aforesaid.  Here- 
in fail  not  ,and  have  you  then  and  there  this  execution.  Issued  the  17th  day  of 
June,  1S71. 

D.  O.  H.  W.  Gillespie, 
Clerk  Superior  Court,  McDowell  County. 

Upon  the  b.ick  of  the  foregoing  execution  is  the  following  endorse- 
ment : 

Judgment  $1,500.00,  with  interest  on  the  same  from  the  3d  day 
of  Oct.,  1870,  tiil  paid,  and  costs. 

A.  M.  Fin'ey,  C.  C.  C,  $9.35;  D.  O.  H.  W.  Gillespie,  C.  S.  C,  $7.51  ; 
County  Tax.  $1.00;  Attorney  T.  R.  Caldwell,  $10.00;  Sheriff  B.  A.  Berry 
60  cts. ;  Sheriff  A.  H.  Simmons,   $5.15. 

To  hand  July  1st,  1871. 

(Signed,)  A.  H.  Simmons,  Sh'ff. 

Levied  this  Fi  fa.  on  the  Morganton  train,  consisting  of  .one  R.  R.  engine, 
two  coaches  and  one  box  car,  to  satisfy  several  judgments  issued  at  McDowell 
Superior  Court,  now  in  my  hands  for  collection.     Sept.  I2th,  1871.  Lev'd  on  Mor- 

(Signed,)  A.  H.  Simmons,  Sh'ff.         gantou  train. 

Judgment  No.  65  brought  on  au  I  stanls  thus  :     (89.) 

Com'r  J.  W.  Hunter,  }.i,  5  05 

"        Ti.ijmas  H-mphill,  5.  5  05 

John  Rutherford.  )       "         H.  A.  Tate.  A,  5  05 

against  I       "        Allen  Conly.  ^,  2  55 

The  Western  N.  Carolina  j       "         S.  P.  Burnett",  £  2  90 

Railroad  Company,         J       "         D.  O.  H.  W.  Gillespie,  C.  S.  C,  2  06 

$  22  66 

And  thereupon  execution  issued  upon  the  foregoing  judgment, 
returnable  to  Fall  Term,  1871,  in  the  following  words   and  figures  : 


t?        »■        .         We  command  you,  that  of  the  goods  and    chattels.    lands    arid  tenements:,  of 
>jifc ration    to  ,  . 

McD.>we'i.      the  Western  North  Carolina  Railroad  Company,  if  to  be  found  in  your  countv, 

you  cause  to  be  made  the  sum  of  twenty-two  dollars  and  65  cents,  which 
lately  in  our  Superior  Court,  for  the  county  of  McDowell,  was  adjudged  to  be 
due  John  Rutherford  for  cost  and  charges  in  said  suit  expended  ;  whereof,  the 
s-aid  Western  N.  C.  Railroad  Company  is  liable,  as  appears  to  us  of  record. 
And  have  you  the  said  moneys,  besides  your  fees  for  this  service,  before  our 
said  Court  at  Marion,  on  the  2d  Monday  after  the  3d  Monday  in  September 
next,  then  and  there  to  render  to  the  said  Court,  the  costs  and  charges-  afore- 
said. Herein  fail  not,  and  have  you  then  and  there  this  execution.  Issued  the 
17th  day  of  June,  1.S71. 

D.  O.  H.  W.  Gillespie, 
Clerk  of  the  Superior  Court  of  McDowell  County. 

Upon  the  back  of  the  foregoing  execution  is  the  following  endorse- 
.    ment:     (No.  89.)     John  Rutherford  against  the  Western  N.  C.  Rail- 
road Company,  Fi  fa.     Returnable  to  Fall   Term,  1871,   McDowell 
Superior  Court. 

Com'r  J.  W.  Hunter,  J,  $5.05  ;  Thomas  Hemphill,  |,  $5.05  ;  Hugh  A.  Tate, 
I,  $5.05  ;  Allen  Conley,  |,  $2.55  ;  S.  P.  Burnett,  g,  $2.90  ;  D.  O.  H.  W.  Gilles- 
pie, C.  S.  C,  $2.06.     To  hand  July  1st,  1871. 

(Signed,)  A.  II.  Simmons,  Sheriff. 

Lew  this  Fi  fa.  on  the  Morganton  train,  consisting  of  one   Railroad  engine, 
JjGvv  on   ATor-  J 

saiiton  train,  two  coaches  and  one  box   car,   to  satisfy   this  judgment,  issued  at  McDowell 

Superior  Court,  now  in  my  hands  for  collection.     Sept.  12th,  1S71, 

(Signed,)  A,  H.  Simmons.  Sheriff. 

Judgments  carried  on  as  before  and  stand  thus  r 

John  Kuthekfokd,  1  Judgment  f  1,500. 00,  with  interest 

Against  }  on  the  same  from  the  3rd  day  of 

Western  North  Carolina  Railroad  Company,  j    October,  1870,  till  paid  and  costs. 

A  M.  Finley,  C.  C.  C,  $  9  35 

D.  O.  H.  W.  Gillespie,  C.  S.  0.,  8  31 

County  Tax,  1  00 

Att'y  T.  R,  Caldwell,  10  00 

Sheriff  B.  A.  Berry,  60 

"      A,  H.  Simmons,  5  15 

$34.41 

Received  of  A.  M.  Erwin,  Attorney,  five  hundred  dollars  on  this  judgment 
and  costs,  March  5th,  1872.  D.  O.  H.  W.  Gillespie,  C.  S.  C. 

See  John  Rutherford's  receipt  filed  in  my  private  papers,  witnessed  by  Major 
M  alone  and  Dr.  Worley,  four  hundred  and  twenty  dollars  and  thirty-three  cents. 

D.  O.  H.  W.  Gillespie,  C.  S.  C. 


(*55) 

Judgment  for  cost  again  stated.  ]  Com.  J.  W.  Hunter,  i      $5  05 

John  Rutherford,                    I       "    Thomas  Hemphill,  i        5  05 

Western  North  Carolina  Kail   <      "     Hugh  A.  Tate,  £        5  05 

Road  Comvany,                          j       "     Allen  Conley,  £        2  55 

j       "     S.  P.  Burnett,  i        2  90 

J      "    D.  O.  H.  W.  Gillespie,  CSC,  2  80 

D.  O.  H.  W.  Gillespie.  C  8  O, )  $  93 
to  use  of  Johu  Rutherford.         > 

$30.39 
And  an  alias  execution  issued  upon  said   judgment    or  the  large 
judgment  returnable  to  Fall  Term,  1073,  which  is  in  the  following 
words  and  figures,  to  wit  : 

State  of  North.Cakolina, 

To  the  Sheriff  of  McDowell  County, — Greeting  : 

We  command  you,  that  of  the  goods  and    chattels,    lands    and  tenements,  ot 

the  Western  North  Carolina  Railroad  Company,  if  to  be  found  in  your  county,  .  ,. 

J  -     Alms execu.t  n 

you  cause  to  be  made  the  sum  of  $1,500  00.  (fifteen  hundred  dollars, )  with  inter-    to  McDowell 

est  on  the  same  from  the  3rd  day  of  October,  1S70,  till   paid,  and  cost,  (observe 

the  credit  on  the  back  of  this  fi  fa,)  which,  lately  in  our  Superior  Court   for  the 

County  of  McDowell,  was  adjudged  to  be  due  John  Rutherford,  for  debt,  besides 

the  further  sum  of  one  dollar  and  fifteen  cents,    for  costs   and    charges    in    said 

suit  expended  ;  whereof,  the  said  Western  North  Carolina  Railroad  Company 

is    liable,    as    appears    to    us  of  record.     And,   have   you    the  said    moneys, 

besides  your  fees  for  this    service,    before   bur  said    Court  at   Marion,    on    the 

4th    Monday   in    August   next,    then    and    there    to  render  to    the    said  Court 

the   debt   and   costs   and    charges    aforesaid.     Herein    fail  not,    and   have  you 

then  and  there  this  execution. 

Issued  the  iSth  day  of  April,  1S73. 

(Signed.)  D.  O.  H.  W.  Gillespie, 

Clerk  of  the  Superior  Gourt  of  McDowell  County. 

And  upon  the  back  of  the  foregoing  execution  is  the  following 
endorsement,  to-wit  : 

No.  28,  John  Rutherford  against  the  Western  North  Carolina  Railroad  com- 
pany. Fi  Fa  returnable  to  Fall  Term,  1873,  McDowell  Superior  Court. 

Judgment  .$1,500.00,  with  interest  on  the  same  from  the  3rd  day  of   October, 

1870,  till  paid  and  cost.     Credit  on  the  above  judgment  $427.33,  March  the  5th 

1871.  D.  O.  H.  W.  Gillespie,  C.  S.  C,  $1  15 
Received  April  18th,  1873.                       (Signed.)          J.  G.  Neal,  Sheriff. 

I  have  this  day  levied  upon  the  Western  North  Carolina  Railroad,    bed,  iron 
a  id  fixtures,  and  on  two  depots,  one  located  at  Marion,  and   the   oilier   at   O'd  Levy  on  road 
Fort,  and  upon  the  franchise  of  said  company  to  establish   and  to  run  a  railrcad    £C"' tral:c  1 ' 
from  Salisbury  to  the  Tennessee  line,  and   upon   all   the   rights   and   privileges 
granted  to  the  said  railroad  company,  by  their  charter,  and  the   several   amend- 
ments thereto,  April  18th,  1873.  (Signed.)         J.  G.  Neal,  Sheriff. 


And  upon  all  the  lands  and  tenements,  tracks,  depots  from  Salisbury  to 
French  Broad  River,  goods  and  chattels,  rolling  stock  and  the  franchise,  and  ail 
the  immunties  and  privileges  of  said  corporation,  April  18th,  1873. 

(Signed.)  J.  G.  Neal,  Sheriff. 
Having  levied  this  execution  on  the  18th  day  of  April,  1873,  on  the  lands  and 
tenements,  goods  and  chattels,  and  the  franchise  with  all  the  rights  and  privil- 
eges thereof,  so  far  as  relates  to  the  receiving  of  fares  and  tolls  of  the  Western 
North  Carolina  Railroad  company  in  McDowell  county,  and  from  Salisbury  to 
the  French  Broad  R.ver,  and  having  advertised  according  to  law,  I  sold  said 
lands  and  tenements,  goods  and  chattels,  and  franchise  with  the  rights  and 
privileges  thereof,  from  Salisbury  to  the  French  Broad  River,  when  Samuel 
McD.  Tate  became  the  last  and  highest  bidder  at  the  sum  of  thirteen  hundred 
and  twenty  five  dollars  and  twenty-one  cents  ($1,325.21.)  I  first  sold  the  lands, 
Return  of  sale  railroad,  road-bed  and  depots,  situated  in  McDowell  county,  when  Samuel  McD. 

to    8.    McD.  rp  t    became  the  last  and  highest  bidder  at  the  sum  of  one   hundred  and   fifteen 
l  ate. 

dollars  ($115).  I  then  sold  the  lands,  railroad,  road-bed,  depots,  fixtures,  roll- 
ing stock  and  other  corporate  property,  real  and  personal,  belonging  to  said 
company,  from  Salisbury  to  the  French  Br  ad  River,  when  Samuel  McD.  Tate 
became  the  purchaser  at  twenty-five  dollars  ($25).  I  then  offered  the  franchise 
and  all  the  rights,  and  privileges  thereof,  so  far  as  relates  to  the  fares  and  tolls 
to  the  person  who  will  satisfy  the  whole  debt  of  this  execution,  and  all  costs 
thereon,  or  who  shall  agree  to  take  the  franchise  for  the  shot  test  period  of  time, 
to  receive  during  that  time  all  such  fares  and  tolls  as  the  said  corporation  would 
by  law  be  entitled  to  demand,  when  Samuel  McD.  Tate  bid  the  whole  amount 
of  said  execution  and  costs,  and  agreed  to  take  such  franchise  for  the  term  of 
eighty  years  next  ensuing,  who  is  declared  by  me  to  be  the  only  and  highest 
bidder.  Said  Samuel  McD.  Tate  filed  plaintiff's  receipt  for  twelve  hundred  and 
eighty-nine  dollars  and  sixty -nine  cents  (#1,289.69),  the  amount  of  debt  and  in- 
terest, and  also  jaid  n  e  tluity-five  dollars  and  fifty-two  cents  ($35.52),  the 
whole  amount  of  cost  due  thereon,  retained  my  fee  and  coin's,  thirty- four  dollars 
and  thirty-Seven  cents,  pay  into  office  one  dollar  and  fifteen  cents. 

This  May  31st  day,  1873.  (Signed.)        J.  G.  Nkal,  Sheriff 

(See  this  endorsement  on  Fi  Fa.) 

Received  of  Sam'l  McD.  Tate,  twelve  hundred  and  eighty-nine    dollars    and 

Eecei't  of  .Ino.  sixtv-nine  cents,  in  lull  of  this  execution  and  costs.     31st  Mav,  1S73. 
Rutherford.  .,,.         ,  ,  T  _ 

(Signed.)  Johx  Rutherford, 

By  B.  S.  Gaither.  Att'y  for  Plaintiff. 

Received  on  this  Fi  fa  ,  thirty -five  dollars  and  fifty  cents.  Retained  mv  fee 
and  commission,  thirty-four  dollars  and  thirty-five  cents,  paid  into  office  one 
dollar  and  fifteen  cents.     This  May  31st,  1873. 

(Signed,)  J.  G.  Neal,  Sh'ff. 

Statr  of  North  Carolina,^ 
McDowell  County. j 
I,  D.  O.  H.  W.  Gillespie,  Clerk  of  the  Superior    Court    for  the 
County  of  McDowell  and  State  aforesaid,  do  hereby    certify    that 


(  *57 ) 

the  foregoing  is  a  true,  full  and  perfect  transcript  of  the  proceedings 
had  and  done  up  to  the  rendition  of  the  judgment,  and  a  full,  true 
and  perfect  transcript  of  all  the  proceedings  had  on  said  judg- 
ment, since  the  rendition  of  the  same,  as  appears  now  on  record 
in  my  office  wherein  John  Rutherford  is  Plaintiff,  and  the  Western 
North  Carolina  Railroad  Company  is  Defendant. 

Given  under  my  hand  and  seal  at  office,  this  15th  day    of   Octo- 
ber,  1S81. 

[Seal.)  D.  O.  H.  W.  Gillespie, 

Clerk  Superior  Court,  McDowell  County. 

N.  B. — Deed  to    Tate    not  inserted,    as   his    title  is    in  friendly 
hands 


A.  B.  Chambers,  )     Executions     to    Spring 

vs.  v    Term,  1871. 

VW.  N.  C.  R.  R.  Co.  ) 

Judgment  29th  August,  1870. 

Damage,  $1,344.00. 

Costs,  $35.68. 

Issued  7th  Oct.,  1870. 

A  lias  for  eost,  5th  Oct.,  1870. 

Also  for  $170.00. 

The  within  execution  is  enjoined. 

W.  F.  Wosson,  Sh'ff. 

The  Plaintiff  has  assigned  one  hundred  and  seventy  dollars  of  this  judgment 
to  W.  P.  Caldwell,  for  which  execution  has  issued  for  $170.00,  and  the  costs  of 
this  action  satisfied.  Retained  my  fees,  and  paid  to  W.  P.  Caldwell,  debt,  in- 
terest and  costs.  W.  F.  Wosson,  Sh'ff. 

Received  debt,  $181.28,  for  above.  W.  P.  Caldwell. 

Received  cost  of  this  action,  from  W.  P.  Caldwell. 

C.  S.  Summers,  C.  S.  C. 


(i55) 


.} 


Summons. 


Complaint. 


State  of  North  Carolina, 

County  of  Burke 

Be  it  remembered  that  on  the  22d  day  of  Janu  try,  1878,  the  West- 
ern North  Carolina  R  R.  Co.,  Eastern  Division,  sued  our,  of  the  Su- 
perior Court  of  Burke  county,  a  writ  in  these  words  : 

State  of  North  Carolina  ; 

To  the  Sheriff  of  Rowan  County, — Greeting  : 

You  are  hereby  commanded  to  summon  R.  M.  Walker,  the  Defendant 
above  named,  if  he  be  found  within  your  county,  to  be  and  appear  before  the 
Judge  of  our  Superior  Court,  at  a  Court  to  be  hsld  for  the  county  of  Burke 
at  the  Court  House  in  Morganton,  on  the  2d  Monday  in  March,  1878,  and  an- 
swer the  complaint  which  will  be  deposited  in  the  office  of  the  Clerk  of  the  Su- 
perior Court  for  said  County,  within  the  first  three  days  of  said  Term,  and  let 
the  said  Defendant  take  notice,  that  if  he  fail  to  answer  the  said  complaint  within 
that  time,  the  Plaintiff  will  apply  to  the  Court  for  the  relief  demanded  in  the 
complaint.     Herein  fail  not,  and  of  this  summons  make  due  return. 

Given  under  my  hand  and  seal  of  said  Court,  this  22d  day  of  January,    1S78. 
[Seal,]  D.  C.  Pearson. 

Clerk  Superior  Court  Burke  Countv. 

Prosecution  bond  filed. 

And  said  summons  was  duly  returned  endorsed. 


After  due  search  the  Defendant,  R.    M.   Walker 
county.     January  26,  1878. 


is    not  to    be  found  in  my 
C.  F.  Waggoner, 
Sheriff  Rowan  County. 

And  thereupon  Plaintiff  filed  the  fallowing  complaint : 

The  Plaintiff  complaining,  alleges  : 

1.  That  the  Western  North  Carolina  Railroad  Company  was  duly  organ- 
ized on  the  31st  day  of  August,  1855,  under  the  act  of  the  General  Assembly  of 
North  Carolina,  ratified  on  the  15th  day  of  February,  1855,  incorporating  said 
Company,  for  the  purpose  of  constructing  a  Railroad  to  effect  a  communica- 
tion between  the  North  Carolina  Railroad  and  the  Valley  of  the  Mississippi, 
and  to  authorize  the  said  corporate  Company,  under  the  name  and  style  of  the 
Western  North  Carolina  Railroad  Company,  when  formed  in  compliance  with 
the  provisions  of  said  charter,  to  exist  and  continue  as  a  body  politic  for  the 
term  of  ninety-nine  years. 

2.  That  under  the  provisions  of  the  said  act  of  incorporation,  and  other  acts 
of  the  General  Assembly,  amendatory  of  the  said  original  charter,  the  said 
Company  did  locate  a  Railwaj'  from  the  town  of  Salisbury,  on  the  North  Car- 
olina Railroad,  to  the  French  Broad  River  beyond  the  Blue  Ridge,  in  the  coun- 
ty of  Buncombe,  and  from  the  French  Broad  River  to  the  Tennessee  line  in  the 
direction  of  Ducktown,  on  the  Georgia  line,  and  likewise  from  the    same   point, 


(i59) 

on  the  French  Broad  River,  down  the  said  River  to  the  Tennessee  line  at  Paint 
Rock. 

3.  That  under  the  said  acts  of  the  General  Assembly,  the  said  Company  has 
constructed  a  Railroad  from  Salisbury,  via  Statesville,  Newton,  Hickory,  Mor- 
ganton  and  Marion,  to  the  Blue  Ridge,  and  has  the  same  in  full  operation. 

4.  That  on  the  19th  day  of  August,  1S68,  the  General  Assembly  passed  an 
act  entitled,  "An  Act  to  amend  the  charter  of  the  Western  North  Carolina  Rail- 
road Company  ;"  "that  the  Western  North  Carolina  Railroad  shall  consist  of 
two  separate  and  distinct  divisions,  one  called  the  Eastern  Division,  and  shall 
embrace  the  said  Road  from  Salisbury  to  French  Broad  River,  near  Asheville 
and  the  other,  called  the  Western  Division,  which  shall  embrace  the  said  Road 
from  the  French  Broad  River  to  Ducktown  and  Paint  Rock,  on  the  Tennessee 
line.  And  the  property,  appropriations  and  subscription  of  stock,  heretofore 
made  bv  the  State  and  private  stockholders  for  the  Eastern  Division  of  said 
Road,  shall  be  used  only  for  the  purpose  of  the  completion  and  operation  of 
said  Eastern  Division  of  said  Road,  and  shall  be  managed,  controlled  and  di- 
rected by  a  Board  of  Directors,  as  now  provided  by  law.  And  that  the  West- 
ern Division  of  said  Road  shall  be  managed,  constructed  and  controlled  by  a 
Board  of  Directors,  separate  and  distinct  from  the  Board  of  Directors  of  the 
Eastern  Division.  And  that  the  said  amendment  of  the  charter  was  duly  ac- 
cepted by  the  State  and  the  private  stockholders  of  the  said  Company. 

5.  That  on  the  19th  of  December,  1866,  the  General  Assembly  passed  an 
act  to'enhance  the  value  of  the  bonds  to  be  issued  for  the  completion  of  the 
Western  North  Carolina  Railroad,  in  which  it  is  declared  that  the  President 
and  Directors  of  the  Western  North  Carolina  Railroad  Company  be  authorized 
aid  empowered  to  issue  bonds  of  the  Company,  and  running  for  such  term  of 
years  as  they  may  deem  expedient,  and  bearing  interest  at  rate  not  greater  than 
eight  per  cent  per  annum,  and  to  make,  execute  and  deliver  a  deed  or  deeds,  of 
mortgage,  conveying  a  whole  or  portion  of  the  rights,  titles  and  interests  of  the 
Company,  in  any  or  all  the  estate,  both  real  and  personal,  belonging  to  said 
Company,  or  in  anj'  manner  pertaining  to  the  same,  to  the  purchaser  or  pur- 
chasers of  said  bonds  of  the  Company,  and  conditioned  for  the  payment  of  said 
bonds  at  maturity,  and  also  to  pledge  the  profits  of  said  Company,  or  so  much 
thereof  as  may  be  necessary  for  the  payment  of  the  interest  on  said  bonds  as  it 
fa' Is  due. 

6.  That  the  said  last  amendment  to  their  charter,  the  said  company  on  the 
21st  February,  1867,  m  full  meeting  of  the  stockholders,  did  ratify,  and  duly 
accept  and  adopt  said  act  as  an  amendment  to  the  charter  of  said  company. 

7.  That  on  the  8th  day  of  January,  1870,  the  President  and  Directors  of  the 
Western  North  Carolina  Railroad  company  of  the  Eastern  Divison  for  the  pur- 
pose, and  with  the  intent  to  complete  said  railroad  to  its  western  terminus  at 
Asheville,  did  resolve  to  issue  fourteen  hundred  thousand  dollars  of  coupon 
bonds  of  said  company  under  the  authority  of  the  said  amended  charter,  the 
bonds  to  bear  eight  per  cent,  interest,  payable  every  six  months,  and  to  run  for 
twenty  years,  and  to  be  secured  by  mortgage  or  deed  of  trust  on  all  the  road, 


(i6o) 

road-bed,  charter,  iron,  cars,  engines,  depots,  rights  of  way,  franchises,  rights, 
credits,  and  all  property,  real  and  personal,  belonging  to  said  railroad  company, 
including  all  the  said  railroad  running  as  well  as  that  graded  and  being  grad- 
ed, including  the  entire  line  from  Salisbury  to  Asheville,  and  all  the  property, 
real  and  personal  of  said  company,  conditioned  for  the  payment  of  the  said 
bonds  at  their  maturity,  and  pledging  the  profits  arising  from  the  road  for  the 
pa3rment  of  the  interest  from  time  to  time  as  it  falls  due. 

That  on  the  1st  day  of  March,  1870,  the  said  company  did  issue  their  coupon 
bonds  amounting  to  the  said  sum  of  fourteen  hundred  thousand  dollars,  in  one 
thousand  dollar  bonds  each,  and  did  secure  the  payment  thereof,  by  executing 
and  delivering  a  deed  of  mortgage  or  trust  to  Tod  R.  Caldwell,  and  Henry 
Clews  for  all  the  road,  road-bed,  charter,  iron,  cars,  engines,  depots,  rights  of 
way,  franchise  aad  otlier  prop3rty  as  hereinbefore  set  forth  on  that  day,  1st, 
March,  1870.  ' 

8.  That  the  said  mortgage  was  duly  recorded  and  registered,  and  the  said 
railroad  company  put  their  said  bonds  so  secured  upon  the  market,  and  sold  a 
number  of  them  to  innocent  purchasers  for  a  valuable  consideration. 

9.  That  afterward  a  large  number  of  the  said  bonds  came  into  the  hands  of 
one  Hiram  Sibly,  and  the  said  company  failing  to  pay  the  sa.ne,  and  thereby 
caused  a  breach  of  the  covenant  of  their  said  mortgage  deed  to  the  said  Cald- 
well and  Clews.  The  said  Sibly  and  others  filed  their  bill  in  Equity  in  the  Cir- 
cuit Court  of  the  United  States,  for  the  State  of  North  Carolina,  at  Greensboro, 
against  the  said  Western  North  Carolina  Railroad  company  for  the  eastern  divi- 
sion, and  the  said  Tod  R.  Caldwell  and  Henry  Clews,  and  others,  demanding  an 
account  of  the  indebtedness  of  the  said  company  to  the  plaintiff  by  reason  of 
their  said  bonds,  and  a  foreclosure  of  the  said  mortgage  to  the  said  Caldwell 
and  Clews. 

10.  That  the  said  Sibly  and  others  afterward  in  the  said  Court  did  obtain  a 
judgment  against  the  Western  North  Carolina  Railroad  company  for  a  large  sum 
upon  their  said  bonds,  and  the  said  Court  did  order,  adjudge,  and  decree  that  all 
the  property  of  the  said  company  conveyed  in  said  mortgage  deed  be  sold  by  their 
commissioners  appointed  by  said  Court  to  the  highest  bidder  for  cash,  and  the 
said  commissioners  in  pursuance,  and  in  obedience  to  the  said  decree  on  the  day  of 

at  the  towu  of  Salisbury,  did  sell 
all  the  property  of  the  said  railroad  company,  contained  in  the  said  mortgages 
or  trust  deed,  when  and  where,  which,  Curtis  H.  Brogden,  Governor  of  the  State 
of  North  Carolina,  Robert  F.  Armfield,  President  of  the  Senate,  and  James  L. 
Robinson,  Speaker  of  the  House  of  Representatives,  commissioners,  on  the  part 
of  the  State,  were  the  last  and  highest  bidders,  at  the  price  of  eight  hundred 
and  twenty-five  thousand  dollars,  and  were  declared  by  the  said  commissioners 
to  be  the  purchasers  of  the  property,  and  were  so  reported  by  the  said  commis- 
sioners to  the  said  Circuit  Court  of  the  United  States,  at  Greensboro,  in  the  wes- 
tern district  of  North  Carolina. 

11.  That  the  said  Circuit  C  -urt  of  the  United  States  did  confirm  the  sale  as 
reported  by  the  said  commissioners,  and  order  the  said  commissioners  on  the 
payment  of  the  purchase  money,  to  convey  the  property  to  the  State,  that   the 


(  i61  ) 

purchase  money  was  paid,  and  the  conveyance  made   in  pursuance  to  the  order 
\jf  said  Court  by  the  said  commissioners. 

12.  That  the  purchase  of  the  said  road  was  made  under  the  Act  of  the  Gen- 
eral Assembly,  ratified  13th  March,  1875,  which  authorized  the  Governor,  Arm- 
field  and  Robinson  to  purchase  the  same,  and  to  make  the  payment  of  the  pur- 
chase money,  and  empowered  the  Governor  of  the  State,  by  and  with  the  advice 
a"nd  counsel  of  the  Senate,  to  appoint  three  commissioners  to  manage  said  road 
and  its  affairs  during  the  pleasure  of  the  General  Assembly. 

13.  That  the  Governor  did  appoint  the  said  commissioners  who  took  charge 
of  the  road,  and  its  affairs,  and  managed  the  same. 

14.  That  on  the  19th  day  of  February,  1877,  the  General  Assembly  passed 
another  act,  entitled  "an  act  to  porvide  for  the  speedy  competition  of  the  Wes- 
tern North  Carolina  Railroad,  and  to  amend  an  act,  entitled  '"an  act  in  relation  to 
the  Western  North  Carolina  Railroad,  ratified  13th  March,  1875,  and  did  enact  that 
the  Western  North  Carolina  Railroad  company  created  by  virtue  of  an  act, 
ratified  the  13  March,  1875,  shall  be  deemed,  and  held  to  be  a  corporation,  and 
to  have  all  the  franchise,  powers,  rights  and  advantages,  confirmed  by  the  act, 
entitled  "an  Act  to  incorporate  the  Western  North  Carolina  Railroad  company, 
ratified  15  February,  1855,  and  all  the  acts  amendatory  thereof,  except  as  the 
same  may  be  modified,  abridged,  enlarged  or  repealed  by  this  act,  and  the  act  of 
which  it  is  amendatory,  aid  that  this  act,  and  that  which  it  is  amendatory,  shall 
not  be  so  construed  as  to  create  any  liability  of  the  present  company  for  or  on 
account  of  any  debt  of  any  kind  nor  a  continua  ion  of  the  said  debt,  "the  Wes- 
tern North  Carolina  Railroad  Company  " 

15.  That  the  said  corporation  has  been  regularly  organized  under  the  said  act 
of  the  19  February,  1877,  with  a  President  and  Board  of  Directors  as  provide 
for  in  said  act. 

16.  The  effects  of  the  sale  of  all  the  property,  and  effects,  and  the  franchise 
of  the  late  Western  North  Carolina  Railroad  company  under  the  decree  of  the 
Circuit  Court  of  the  United  States,  and  conveyance  of  the  same  to  the  State  of 
North  Carolina,  is  to  dissolve  the  former  corporation  known  as  the  Western 
North  Carolina  Railroad,  and  to  deprive  said  corporation  of  all  its  franchises. 
and  privileges,  and  to  vest  all  its  property  and  franchise  in  tne  State  of  North 
Carolina,  and  the  effect  of  the  act  of  February  17th,  1877,  and  the  organization 
under  its  provision  is  to  create  a  new  corporation,  separate  and  distinct  from  the 
old  corporation,  and  in  no  way  connected  with  it  or  liable  for  any  of  its  liabil- 
ities. 

17.  That  the  defendant^.  R.  M.  Walker,  at  the  Spring  Term,  1871,  of  Rowan 
Superior  Court,  obtained  payment  for  $3987,  or  thereabouts,  against  the  old 
corporature,  known  as  the  Western  North  Carolina  Railroad  company,  Eastern 
Division,  and  has  recently  caused  an  execution  to  issue  on  the  same  directed  to 
the  Sheriff  of  Buncombe  county,  and  placed  the  same  in  the  hands  of  Levi 
Plemons,  Sheriff  of  said  cou*nty,  who  has  levied  upon  road-bed,  right  of  way, 
depots,  superstruction,  equipments,  franchise,  and  all  property  attached  and 
appurtenant  to  the  franchise  of  the  Western  North  Carolina  Railroad,  the  pro- 


(  i6»  ) 

perty  of  the  plaintiff,  to  pay  and  satisfy  the  said  debt  due  from  the  late  com- 
pany of  that'  name,  and  has  advertised  the  same  for  sale  on  the  4th  day  of  Feb- 
ruary, 1878,  at  Asheville. 

18.  That  the  plaintiff  has  issued  a  writ  of  summons  against  the  defendant, 
R.  M.  Walker,  returnable  to  the  next  term  of  Burke  county  Court,  commencing 
on  the  2nd  Monday  in  March.  1878,  in  which  this  is  the  plaintiff's  complaint  to 
be  filed  in  said  action,  and  plaintiff  demands  judgment: 
rrny'rforjudg-  ^  That  this  Court  declare  the  rights  of  the  parties  that  the  plaintiffs  area 
new  corporation,  separate  and  distinct  from  the  old  corporation,  known  as  the 
'  Western  North  Carolina  Railroad  Company,  Eastern  Division,  and  that  the  pres- 
ent corporation,  the  plaimiffs,  are  not  liable  for  the  defendant's  debt,  created 
by  the  former  corporation  with  him.  ■* 

2.  That  the  plaintiffs  derive  their  title  to  the  said  railroad,  property,  and 
franchise  and  appurtenance  through  the  mortgages  of  said  company,  decree1  of 
said  Circuit  Court  of  the  United  States,  sale  and  conveyance  to  the  State  of 
Nprth  Carolina,  and  from  the  State  to  the  plaintiff,  by  the  act  of  incorporation, 
and  that  defendant's  debt  not  being  in  judgment,  so  as  to  create  a  lien  before 
the  1st  day  of  March,  1870,  wbdi  the  lien  of  the  said  mortgage  attached,  that 
the  lein  of  the  mortgage  has  priority,  and  that  no  property  included  in  the 
mortgage,  and  sold  under  the  decree  of  said  Court,  and  conveyance  to  the 
plaintiff  or  to  those  under  whom  the  claim  is  liable  to  be  sold  under  the  defend- 
ant's judgment  t'nd  execution. 

3.  That  the  defendant  be  enjoined  and  restrained  from  selling  any  of  the 
property  of  the  present  corporation  in  satisfaction  of  his  debt,  that  the  sale  of 
the  property  would  be  an  act  which  tends  to  the  injury  of  the  plaintiff,  and  cast 
a  cloud  upon  his  title,  and  thereby  does  serious  and  permanent  injury  to  the 
plaintiff  by  destroying  or  injuring  the  markvtable  value  of  their  property,  and 
prevent  a  multiplicity  of  suits,  and  prevent  litigation,  that  the  Court  grant  a  re- 
straining order  to  the  Sheriff  restraining  the  defendant  from  selling  or  proceeding 
further  in  the  premises  until  the  hearing  of  this  action  or  until  further  orders  by 
this  Court,  and  grant  such  other  and  further  relief  as  the  premises  require  or 
would  justify.  B.  S.  Gaithek.  Attorney 

for  Defendant. 

State  of  North  Carolina,  > 
Burke   County./ 

The  plaintiff  the  Western  North  Carolina  Railroad  Company  by  its  President, 
Verification.     James  W.  Wilson,  maketh  oath  that  the  matters  of  fact  set  forth  in  the  fore- 
going complaint  as  of  his  own  knowledge  are  true,  and  those  not  of  his  own 
knowledge  he  believesjto  be  true.  James  W.  Wilson, 

President  W.  N.  C.  R.  P.. 
Sworn  to  and  subscribed  before  me  this  the  23rd  January,  1878. 

D.  C.  Pearson, 
Clerk  of  Burke  Superior  Court. 

And  thereupon  the  following  order  was  made  at  Chambers  : 


(  "63  ) 

Supeeior  Court,  "1  11th  District  of  Burke  county. 

North  Carolina,  I 

The  Western  North  Carolina  Railroad  Company,  I      ^    Chambers 

(Eastern  Division,)  Plaintiff,  f 

Against  I  Rostraini'g  or- 

R.  M.  Walker,  Defendant.  .J      26th  January,  1878.  der. 

In  the  above  entitled  cause  it  appears  to  the  Court  as  follows  : 
That  the  plaintiff  is  entitled  to  injunctive  relief,  and  on  his  filing  bond  in  the 
sum  of  two  hundred  dollars, 

It  is  thereto  e  ordered  : 

1.  That  notice  issue  to  the  defendant  to  appear  at  the  next  term  of  Burke 
Superior  Court,  and  show  cause  (if  any  he  have)  why  the  prayer  of  the  petition 
should  not  be  granted,  and  that  in  the  meantime  he  and  all  other  persons  be  re- 
strained from  further  proceedings  under  the  judgment  and  execution  set  forth 
in  said  complaint 

The  Clerk  of  said  Burke  Superior  Court  will  issue  notice,  copies,  &c,  and 
tax  costs  to  await  the  further  order  of  the  said  Superior  Court. 

J.  L.  Henry,  Judge. 

And  in  obedience  to  the  foregoing  order  the    plaintiff  filed  the 

following  bond  : 

State  of  North  Carolina,  )    Superior  Court. 

Burke  County,  i 

The  Western  North  Carolina  Railroad  Company,! 

against  ',- 

R.  M.  Walker.  •         ) 

We,  the  Western  North  Carolina  Railroad  Company,  principal,  and  James 
W.  Wilson,  security,  are  held  and  firmly  bound  unto  the  Defendant,  R.  M. 
Walker,  in  the  above  entitled  action,  in  the  sura  of  two  hundred  dollars,  to 
which  payment,  well  and  truly  to  be  made,  jointly  and  firmly  by  these  pres- 
ents.      Given  under  our  hands  and  seals,  this  29th  January,  1878. 

The  condition  of  the  above  obligation  is  such  that,  whereas,  the  Western 
North  Carolina  Railroad  Company  has  brought  an  action  in  the  Sup'r  Court 
of  Burke  county,  against  the  Defendant,  R.  M.  Walker,  returnable  to  the  next 
Term  of  said  Court,  on  the  2nd  Monday  in  March  next  ;  and  whereas,  on  the 
application  of  the  Plaintiff  to  the  Honorable  James  L.  Henry,  Judge  of  this  Ju- 
dicial District,  to  enjoin  and  restrain  the  said  Defendant  from  levying  and  sell- 
ing the  Plaintiff's  property,  under  a  certain  execution  issued  in  favor  of  the  De- 
fendant, against  the  Plaintiff,  on  a  Judgment  recorded  in  the  county  of  Wake, 
against  the  Western  North  Carolina  Railroad  Company,  Eastern  Division,  di- 
rected to  the  Sheriff  of  Buncombe  county,  commanded  to  him  to  make  the  said 
money  out  of  the  property  of  the  Plaintiff  in  this  action  ;  and  whereas,  the  said 
James  L.  Henry,  Judge,  as  aforesaid,  has  ordered  that  the  Plaintiff  is  entitled 
to  injunction  and  relief  demanded  on  his  filing  bond,  in  the  sum  of  two  hun- 
dred dollars,  before  the  Clerk  of  the  Superior  Court. 

And  that  notice  issue  to  the  Defendant  to  appear  at  the  next  Term  of  Burke 


"ocice    of  the 
iresroins 


Superior  Court,  and  show  cause,  if  any  he  has.  why  the  prayers  of  the  petition 
should  not  be  granted,  and  that  in  the  meantime  he  and  all  other  persons  be 
restrained  from  further  proceedings  under  the  judgment  and  execution  set  forth 
in  said  complaint. 

Now  if  the  said  plaintiffs  shall  well  and  truly  pay  and  discharge  all  damages 
and  costs  of  said  restraining  order  in  favor  o;  the  defendant,  then  the  above 
bond  to  be  void,  otherwise  1o  remain  in  full  force  and  effect. 

Attest  :      Western  N.  C.  Railroad,  by  J.  W.  Wilson,  President. 

S.  T.  Pearson, 
J.  W.    Wilson.     [Seal.] 

And  accordingly  the  following  notice  was  issued  to  the  Coroner 

of  Buncombe  county : 

State  of  North  Carolina,  ) 

Burke  County  Superior  Court.  \ 

To  the  Coroner  of  Buncombe  County, — Greeting. 
Superior  Court,  ")  Burke  County, 

nth  District  of  North  Carolina.  At  chambers, 

W.  N.  C.  Railroad,  Eastern  Division,  )■ 

Against  |  26th  of  Januarv,  1S7S. 

ile'r" s  "'     R.  M.  Walker.  J 

In  the  above  entitled  cause  it  appeared  to  the  Court  as  follows: 

That  the  plaintiff  is  entitled  to  injunctive  relief,  and  on  his  filing  bond  in  the 
sum  of  ($200)  two  hundred  dollars, 

It  is  therefore  ordered  : 

1st  :  That  notice  issue  to  the  defendent  to  appear  at  the  next  term  of  Burke 
Superior  Court  and  show  cause  if  any  he  has  why  the  prayer  of  the  petitioner 
should  not  be  granted.  And  that  in  the  meantime  he  and  all  other  persons  be 
restrained  from  further  proceedings  under  the  judgment  and  execution  set  forth 
in  said  complaint. 

The  Clerk  of  said  Burke  Superior  Court  will  issue  notices,  copies,  &c,  and 
tax  costs  to  await  the  further  order  of  tne  said  Superior  Court. 

J.  L.  Henry,  Judge. 

You  are  therefore  hereby  commanded  to  serve  the  above  order  upon  Levi 
Plemmons,  Sheriff  of  Buncombe  county,  and  to  deliver  to  the  said  Sheriff  at  the 
same  time  the  enclosed  copy  of  the  plaintiffs  complaint,  immediately,  and 
make  your  return  upon  the  order  to  the  next  term  of  the  Superior  Court  of 
Burke,  to  be  held  for  the  County  of  Burke,  at  the  Court  House  in  Morganton, 
on  the  2nd  Monday  in  March  next,  with  your  return  endorsed  thereon,  how 
you  shall  have  executed  the  same. 

Herein  fail  not  and  have  you  then  and  there  this  process. 

Given  under  my  hand  and  seal  of  office,  at  office  in  Morganton,  this  the  29th 
day  of  January,  1878. 

D.  C.  Pearson,  Cl'k  Superior  Court.     [Seal.] 

Whi"h  sril  notice  wis  duly  returned  endorsed  : 


Executed  the  31st  day  of  January,  1S7S,  by  delivering  a  copy  of  the  complaint 

mentioned  in  the  within  to  Levi  Plemons,  Sheriff  of  Buncombe  county.  Return  of  Cor 

1  '  oner  of  Bun- 

Samuel  C.  Shelton,  Coroner.       combe. 

And  the  plaintiff  filed  the  following  affidavit: 

The  Plaintiff  in  the  above  entitled  action  make  the  oath   that   the    defendant, 
R.  M.  Walker,  after  due  diligence,  cannot  be  found  in  this    State,    so    that    the 
summons  issued  in  this  action    cannot  be  personally  served   upon    him.     That  Affidavit     o  f 
the  Plaintiff  is  informed  and  believes  that  he    is    a  resident   citizen  of  another  ?    ivlrnto 
State.     That  the  plaintiff  has  a  good  cause  of  action  existing  against  the  defend-  order    of  pub- 
ant,  and  that  he  is  a  necessary  and  proper  party  to  this  action,   relating    to  real 
property  in  this  State,  and  that  he  has  property  in  this  State  and  this  Court  has 
jurisdiction  of  the  subject  matter  of  this  action. 

Jas.  W.  Wilson, 
Pres't  W.  N.  C.  Railroad. 
Sworn  to  and  subscribed  before  me,  this  29th  January,  1878. 

D.  C.  Pearson.    Clerk  Sup'r  Court. 

And  thereupon  the  following  order  was  made  : 

This  action  has  been  commenced  by  summons  against  the  Defendant,  return- 
able to  the  next  Term  of  the  Superior  Court  of  Burke  county,  on  the  2d  Mon- 
day in  March,  1S7S.  And  the  Plaintiff  has  filed  a  complaint  for  relief,  and  0  -  f  . 
upon  the  hearing  of  which,  at  Chambers,  His  Honor  Judge  Henry  ordered  that  lication. 
notice  should  issue  to  the  Defendant,  commanding  that  an  execution  issued 
from  the  county  of  Rowan,  in  favor  of  the  Defendant,  against  the  Western 
North  Carolina  Railroad  Company,  Eastern  Division,  now  in  the  hands  of  the 
Sheriff  of  Buncombe  County,  and  levied  upon  the  property  of  the  Plaintiff  be 
enjoined,  and  the  Defendant  and  all  other  persons  be  restrained  from  further 
execution  ol  said  process,  and  that  Defendant  appear  at  said  Court  and  show 
cause,  (if  any  he  has,)'  why  the  Plaintiff  shall  n:)t  have  the  relief  demanded  in 
said  complaint.  And  it  appearing  by  affidavit,  to  the  Court,  that  the  Defend- 
ant R.  M.  Walker,  is  a  resident  citizen  of  another  State,  and  that  the  summons 
in  this  action  and  the  copy  of  the  restraining  order  of  the  Court  cannot  be  per- 
sonally served  on  him.  It  is  therefore  ordered  by  the  Court,  that  publication 
be  made  in  the  Blue  Ridge  Blade,  a  newspaper  published  at  Morganton,  once 
a  week  for  six  weeks,  requiring  the  Defendant  to  appear  at  the  said  Court  on 
the  2d  Monday  in  March,  1878,  and  answer  or  demur  to  the  Plaintiff's  com- 
plaint, at  that  term  of  said  Court.     This  the  29th  Jan.,  1878. 

D.  C.  Pearson,  C.  S.  C. 

And  at  the  Term  of  said  Court  begun  and  held  in  and  for  the 
County  of  Burke,  at  che  Court  House  in  Morganton,  on  the  2nd 
Monday  in  March,  1878,  before  the  Hon.  J.  M.  Cloud,  Judge,  the 
following  order  was  ncrde  : 


(i66) 

State  of  North  Carolina,  \    Superior  Court,  Spring  Term,  1S78. 

Burke  County.} 


W.  N.  C.  R.  R.  Co, 

vs. 
R.  M.  Walker. 


I 


jn  the  above  entitled  case  it  is  agreed  by  counsel  for  both  Plaintiff-;    an;!   D2- 

Defendant  al-  fendants,  that  the  Defendants  in  this  case  have  60  days    allowed  them  in  which 
lowed  to  an-  tQ  fi,e  theh.  answer 

And  upon  the  agreement  of  counsel  for  Plaintiff  and  Defendant,  it  is  ordered 
by  ,jthe  Court  that  injunction  issue,  restraining  the  Plaintiff  from  all  proje.diigs 
Injunction  till  against  said  Plaintiff  company,  its  franchises,  road,  property   and    effects,    until 
further  ord'r.s.  the  further  order  of  this  Court.  J.  M.   Cloud,  Judge. 

And  at  Fall  Term,  1878,  the  case  was  continue .1,  and  at  Spring1 
Term,  1879,  the  case  was  continued. 

And  at  Fall  Term,  1879,  of  said  Court,  the  case  was  continued. 

And  at  the  Term  of  said  Court  begun  and  held  in  and  for  s:iid 
county,  on  the  21  Monday  in  March,  1880,  before  the  H  ;n  >ra')le 
John  A.  Gilmer,  Judge.  This  cj.se  coming  on  to  be  hdard,  the  fol- 
lowing decree  was  made : 

North  Carolina,  "]  Superior  Court, 

Burke  County.  |  Spring  Term,  1880. 

Western  North  Carolina  Railroad,  Eastern  Division,  } 
VS.  I 

R.  M.  Walker.  J 

This  action  heard  on  motion  at  Spring  Term,  1889,  to   make  the   injunction 
final.  prayed  for  perpetual,  the  Court  finds  and  declares  the  followin  ?  facts  : 

On  the  23rd  day  of  January,  1878,  the  plaintiff  began  his  civil  action  against 
the  defendant,  returnable  to  the  Spring  Term  of  1878,    Burke  Superior  Court, 
praying  for  a  perpetual  injunction  against  the  defendant  selling  the  road,    pro 
perty,   franchise  and  effects  of  the   plaintiff  corporation   under  an  execution 
issuing  upon  an  alleged  debt  reduced  to  judgment  in  their  favor. 

And  upon  the  motion  of  the  plaintiff,  it  was  ordered  that  the  said  defendant 
appear  before  the  Judge  of  said  District  on  the  28th  day  of  January,  1878,  and 
show  cause  why  an  injunction  should  not  issue,  and  accordingly  the  defendant 
did  appear,  and  after  hearing  the  complaint  and  affidavits,  the  Judge  ordered 
that  the  defendant  be  restrained  from  selling  the  said  road  until  he  should  file 
an  answer,  and  until  the  further  order  of  the  Court.  At  Spring  Term,  1878,  ai 
agreement  was  entered  by  the  counsel  of  the  plaintiff  and  defendant  to  the  effect 
that  the  defendant  was  to  have  sixty  days  in  which  to  file  his  answer,  and  i 
the  meantime  his  execution  against  the  road,  property  and  effects  of  plainti 
/  was  to  be  restrained,  and  the  same  was  entered  upon  the  Docket  as  an  order  0 
the  Court. 

And  the  Court  further  finds  that  said  cause  has  been  continued  from  term  fr 


(  167) 

term  to  the  present  time,  in  order  that  the  defendant  might  file  his  answer,  and 
no  answer  being  filed,  it  is  now  moved  by  the  Hon.  B.  S.  Gaither  and  Geo.  N. 
Folk,  Esq.,  Attorneys  for  the  plaintiff,  thai  the  said  injunction  heretofore  issued 
as  aforesaid,  be  made  perpetual,  and  thereupon  the  Court  finds  and  declares  that 
the  facts'  s  it  forth  in  the  complaint  in  this  action  are  true,  and  the  Court  expressly 
refers  to  and  adopts  the  statement  of  facts  contained  in  the  complaint  as  fully 
as  though  the  same  were  here  repeated  and  set  fortli  in  the  records  and  figures 
there  issued 

And  thereupon  the  Court  doth  order,  adjudge  and  decree  that  the  said  defend- 
ant, R.  M.  Walker,  be  perpetually  enjoined  and  restrained  from  selling  under 
his  execution  or  any  execution  issuing  upon  the  judgment  recited  in  the  com- 
pi  lint,  the  road,  property,  franchise  and  ejects  of  the  plaintiff  corporation,  and 
it  is  also  ordered  that  the  said  R.  M.  Walker  pay  the  cost  of  this  suit  to  be  taxed 
by  the  Clerk.  John  A.  Gilmer, 

Judge,  presiding. 

State  of  North  Carolina,  \ 
Burke  County,  j 

I,  J.  H.  Hallyburton,  Cierk  of  <die  Superior  Court  of  Burke  county,  do  certify 
that  the  foregoing  is  a  perfect,  full,  true  and  correct  transcript  and  copy  of  the 
record  in  the  case  of  Western  N\>rfch  Carolina  Railroad  Company,  Eastern 
Division,  vs.  R.  M.  Walker,  as  per  original  papers  now  on  file  in  my  office. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  seal  of  said  Court, 
this  31st.  day  of  October,  1881. 

[Seal.]  (Signed )  J.  H.  Hallyburton,  Clerk 

Superior  Court  Burke  County. 


(i6S) 


(  '69  ) 


(  *7o) 


(  i7«) 


■WESTERN  DIVISION. 


At  Spring  Term,  1873,  of  the  Superior  Court  of  Buncombe 
county,  the  following  judgment  was  rendered,  to  wit  : 

E.   Clayton,  ~) 

VS.  , 

The  Western  Division  of  the  Western  [ 

North  Carolina  Railroad  Company.  J 

At  a  Superior  Court  held  at  the  Court  House  in  Asheville  in  the  county  of 
Buncombe  on  the  22nd  day  of  April,  1872;  Present,  Honorable  J.  L.  Henry, 
Judge,  11th  District.  This  action  having  been  brought,  and  the  defendants  hav- 
ing accepted  service  of  a  summons,  and  a  judgment  therein  rendered  for  the  Judgment, 
plaintiff.  It  is  now  on  motion  of  J.  H.  Merrimon,  counsel  for  the  plaintiff,  E. 
Clayton,  adjudged  that  the  plaintiff  recover  of  the  defendants  eight  thousand 
six  hundred  and  seventeen  dollars  and  seventy -eight  cents  ($8, 617. 678,)  of 
which  eight  thousand  one  hundred  and  seventy-four  dollars  and  seventy-four 
cents  ($8,174.74,)  is  principal,  and  four  hundred  and  forty-three  dollars  and  four 
cents  ($443.04,)  is  interest  and  C03t,  to  be  taxed  by  the  Clerk,  with  interest  upon 
said  principal  till  paid. 

This  judgment  is  in  no  way  to  interfere  with  the  right  of  the  plaintiff  to  re- 
cover in  an  action  against  the  defendant  any  sum  justly  due  said  plaintiff  from 
said  defendant  at  the  time  of  bringing  this  action,  and  not  included  in  this  judg- 
ment. (Signed.)  Henry,  Judge,  &c. 

Transcripts  of  this  judgment  and  executions  thereon  were  sent 
to  Haywood  and  Madison,  May  10th,  1872,  and  execution  issued 
to  Buncombe,  May  nth.  1872. 

The  executions  to  Buncombe  and  Haywood  were  returned  as 
follows  : 

Execution  to  Buncombe — satisfied,  see  plaintiff's  receipt  filed  in  railroad  office, 
pay  into  office  $12.60,  my  commissions  retained.  J.  M.  Young,  Sheriff. 

Execution  to  Haywood — levied  this  execution  on  the  road-bed  and  franchise 
of  the  Western  North  Carolina  Railroad  company,  lying  and  being  in  the  county 
of  Haywood  in  this  State,  this  21st  day  of  May,  1872. 

A.  J.  Murray,  Sheriff 
of  Haywood  county. 

The  lands  levied  on  was  sold  on  this,  and  various  other  Superior  Court  executions 
at  the  Court  House  in  Waynesville,  on  the  6th  day  of  July,  1872,  and  Edward  F. 
Ross,  Agent  for  plaintiff,  was  the  last  and  highest  bidder,  at  the  sum  of  $500.00- 


(172) 

No  money  received  by  me,  but  my  fees.  A.  J.  Murray,  Sheriff. 

Buncombe  County, — Superior  Court,'* 
State  of  North  Carolina.  > 

To  the  Sheriff  of  Buncombe  county — Greeting  : 
Whereas  judgment  was  rendered  on  the  22nd  day  of  April,  1872,  in  an  action 
between  E.  Clayton  against  the  Western  Division  of  the  Western  North  Carolina 
Railroad  company,  defendant,  in  favor  of  said  plaintiff  and  against  the  said 
defendant  for  the  sum  of  eight  thousand  and  six  hundred  dollars  and  seventy- 
eight  cents,  as  appears  to  us  by  the  judgment  roll  filed  in  the  office  of  the  Clerk 
of  our  said  Court,  and  whereas,  the  said  judgment  was  docketed  in  said  county 
on  the  22nd  day  of  April,  1872,  and  the  sum  of  8,617.78  dollars  is  now  actually 
Execution  to  due  thereon,  with  interest  on  8.174.74  d  liars  from  the  22nd  day  of  April,  1872, 
uucombe.  an(j  tjie  further  sum  0f  twelve  dollars  and  ten  cents  for  cost  and  disbursements 
in  said  suit  expended,  whereof  the  said  Western  Division  of  the  Western  North 
Carolina  Railroad  company  is  liable.  You  are  therefore  commanded,  to  satisfy 
the  said  judgment  out  of  the  personal  property  of  the  said  defendant  within 
your  county,  or  if  sufficient  personal  property  cannot  be  found  in  your  county 
belonging  to  such  defendant  on  the  day  when  the  said  judgment  was  docketed 
jn  your  county,  or  at  any  time  thereafter,  in  whos?  hands  soever  the  same  may 
be;  and  further  to  return  this  execution  at  the  next  term  of  this  Court,  to  be 
held  for  the  county  of  Buncombe  at  the  Court  House  in  Asheville  on  the  4th 
Monday  after  the  4th  Monday  in  August,  1872,  to  the  office  of  the  Clerk  afore- 
said.    Issued  the  11th  day  of  May,  1872.  J.  E.  Reed, 

Clerk    Superior  Court  Buncombe  County. 

On  the  back  of  said  execution  was  endorsed  the  following  levy  ■ 

For  want  of  personal  property  I  have  levied  this  execution  upon  the  real  pro- 
perty of  the  defendant  mentioned  in  the  said  execution  situated  in  Buncombe 
county  along  the  line  of  locati  n,  the  track,  road-bed  and  other  lands  adjoining 
same  purchased  by  or  condemned  to  the  use  of  the  said  defendant,  and  upon  the 
town  lot  in  Asheville,  N.  C,  on  the  western  side  of  Main  street  on  southern  side 
of  the  street  leading  from  Main  street  to  Church  street  joining  the  lot  now  be- 
longing to  Mrs.  Julia  Laxton  and  the  Episcopial  church,  containing  two  acres, 
more  or  less,  on  which  are  situated  the  offices  of  the  defendant.  I  also  levy  this 
execution  on  the  franchises,  and  all  the  rights,  and  privileges  and  property 
incident  thereto,  or  in  any  wise  thereto,  appertaining  or  belonging  to  the  said 
defendant  corporation,  25th  May,  1872.  J.  M.  Young,  Sheriff. 

And  attached  to  this  execution  is  a  return  in  the  words  and 
figures  following,  to  wit  : 

Return.  After  due  advertisement  according  to  law  I   proceeded   to   expose   to   public 

sale  in  the  town  of  Asheville,  at  the  Court  House  door  in  said  town,  it  being  the 
8th  day  of  July,  1872,  and  the  1st  Monday  succeeding  the  1st  Saturday  in  said 
month,  the  following  property,  to-wit :  the  office  of  the  western  North  Carolina 
Railroad  company,  (Western  Division,)  situated  in  the  town  of  Asheville, 
officee.  opposite  the  Eagle  Hotel,  and  immediately  below  the  store  house  of  Rankin  & 


(  *73) 

Son,  when  and  where  Thos.  L.  Clayton  and  John  C.  Smathers  became  the  last 
and  highest  bidders  at  the  sum  of  one  hundred  dollars.  Also  at  the  said  time 
and  place,  the  road-bed,  right  of  way  including  all  the  real  property  belonging 
to  the  company  in  the  county  of  Buncombe,  when  and  where  the  said  Thos.  L. 
Clayton  and  John  C.  Smathers  became  the  last  and  highest  bidders  at  the  sum 
of  one  hundred  dollars.  At  the  same  time  and  place  the  franchise  of  said  rail- 
road company  together  with  all  the  rights,  privileges  and  property  incident 
thereto  or  in  any  way  connected  therewith,  liable  to  be  sold  according  to  the  ^Ms^et?*111" 
laws  of  North  Carolina,  was  offered  on  the  following  terms,  to  wit :  who  will 
pay  the  amount  of  the  executions  in  the  hands  of  the  Sheriff,  together  with  all 
the  costs  for  the  shortest  period  of  time,  whereupon  Thos.  L.  Clayton  and  John 
C.  Smathers  bid  the  amount  of  the  within  executions  and  costs  for  the  property 
for  the  time  specified  in  the  charter,  and  no  one  agreeing  to  take  the  property 
for  a  less  time  they  were  declared  the  purchasers. 

J.  M.  Young.  Sheriff 
Buncombe. 

And  immediately  following  the  above  on  the  same  papers  is  the 
following,  (in  hand  writing  of  J.  H.  Merrimon,  Attorney  for 
creditors.)  to  wit  : 

By  direction  of  the  creditors  and  the  railroad  company  we  assign  the  above 
bids  to  R.  Y.  McAden,  and  instruct  the  Sheriff  to  make  the  title  to  said  property 

to  him.  Thos.  L.  Clayton,       .    . 

Assignment  to 
July  8th,  1872.  J.  C.  Smathees.  McAden. 

N.  B. — The  summons,  complaint,  and  answer  in  the    foregoing 

case  have  been  misplaced. 


State  of  North  Carolina.  \_ 
Buncombe  County,  j 
Know  all  men  by  these  presents  that  the  undersigned.  Sheriff  of  the    county 
of  ,  and  State  above  written,  by  virtue 

of  an  execution  issued  from  the  Superior  Court  of  said  county  in  the  case  fol- 
lowing, to-wit:  E.  Clayton  vs.  The  Western  North  Carolina  Railroad  Com- 
pany, Western  Division,  as  of  record  doth  appear,  having  levied  said  execution 

on    the   lands   and   tenements    of    the    said    Railroad    Company,    hereinafter  S?e»lff'lsJdee<l 

r      J  '  to  McAden  of 

described,  on  the  25th  day  of  May,  1872,  and  having  made  advertisement  accord-    road-bed,  <fcc, 

ing  to  law  and  sold  said  lands  and  tenements  at  public  sale  for  cash  on  the  8th 

day  of  July,  1872,  at  the  Court   House,  door   in    said  county,  when  and  where 

R.  Y.  McAden,  of  the  county  of  Mecklenburg  and  State  of  North  Carolina, 

became  the  last  and  highest  bidder  at  the   sum  of  one  hundred   dollars,  which 

said  sum  he  has  paid  to  the  undersigned   in   accordance  with  the  terms  of  said 

sale.     In  consideration  of  the   premises  and    in   further   consideration    of  the 


( m ) 

purchase  money  paid  as  aforesaid  by  the  said  R.  Y.  McAden,  the  receipt 
whereof  is  hereby  acknowledged,  hath  bargained  and  sold,  and  bv  these 
presents  doth  bargain  and  sell  unto  the  said  R.  Y.  McAden  and  his  heirs,  all 
the  right,  title  and  interest  of  the  said  Railroad  Company  as  aforesaid  in  and 
for  the  following  real  estate  or  lands  levied  on  as  aforesaid,  situate  in  Bun- 
combe County  and  bounded  as  follows,  to-wit:  The  road-bed,  track,  and  lands 
adjacent  to  the  line  of  said  road,  right  of  way  condemned  or  purchased  or  be- 
longing to  said  Railroad  Company;  to  have  and  to  hold  said  lands  and  prem- 
ises, with  its  improvements  and  appurtenances,  to  him  the  said  R.  Y.  McAden. 
his  heirs  and  assigns,  in  as  full  and  ample  a  manner  as  the  undersigned,  by 
virtue  of  his  office,  is  empowered  to  convev  and  assure  the  same.  And  the 
undersigned,  Sheriff  as  aforesaid,  doth  covenant,  promise  and  agree  to  and 
with  the  said  R.  Y.  McAden,  his  heirs  and  assigns,  that  he  and  they  may  at  all 
times  hereafter  have,  hold,  occupy,  use  and  possess  said  lands  and  premises 
free  and  clear  from  all  incumbrances  had,  made  or  done  by  the  undersigned, 
or  by  his  order,  means  or  procurement ;  and  that  the  undersigned  will  forever 
warrant  and  defend  said  lands  and  premises  to  the  said  R.  Y.  McAden  and 
his  heirs  and  assigns,  so  far  as  his  said  office  of  Sheriff  will  authorize  and  enable 
him  to  do,  and  no  further. 

In    testimony    whereof,  the    undersigned.    Sheriff  of  Buncombe    county   as 
aforesaid,  hath  hereunto  set  his  hand  and  seal,  this  Sth  day  of  July,  1S72. 

[Seal.]  J.   M.   Young,  Sheriff. 

Signed,  sealed  and  delivered  in  presence  of 
Jas.   H.   Merrimon. 

State  of  North  Carolina./    t     .,      „     ,    .     „ 

Ti  ,     ,-,        .     ,-   In  the  rrobate  Court. 

Buncombe  County.} 

The  execution  of  the  within  deed  from  J.  M.  Young.  Sheriff  of  Buncombe 

county,  to  Rufus  Y.  McAden,  was    this   9th    day  of  July,  1872,  proved    before 

the  undersigned,  fudge  Probate  for  said  county,  by  the  oath  and    examination 

of  Jas.    H.    Merrimon,  the    subscribing  witness  thereto,  therefore    let  the  said 

deed,  together  with  this  certificate,  be  registered. 

J.  E.  Reed, 

Judge  of  Probate. 

Registered  the  9th  July,  1872. 

J.  R.  Patterson, 

Register. 

State  of  North  Carolina.  } 

Buncombe  County.  ) 

Know  all  men  by  these  presents,  that  the  undersigned,  Sheriff  of  Buncombe 

county  and    State    above  written,  by  virtue    of  an    execution    issued  from    the 

ci     to*     a  „i  Superior  Court   of  said   countv  in  the  case    following,  to  \vit:  E.  Clavton  vs. 
Sheriff's   deed        r  -  e>' 

to  McAden  of  The  Western    North    Carolina    Railroad    Company,  Western    Division,  as  of 
'  record  doth  appear,  having  levied  said  execution  on  the  franchise  of  said   Rail- 
road Company  and  property  incident    thereto,  as  hereinafter  described,  on  the 
25th  day  of   May,  1S72,  and  having  made    advertisement  according  to  law,  and 
sold  said  franchise  and  property  at  public  sale  for    cash  on  the  Sth  day  of  July, 


(^75) 

1872,  at  the  Court  House  door  in  said  county,  when  and  where  R.  Y, 
McAden.  of  the  county  of  Mecklenburg  and  State  of  North  Carolina,  became 
the  last  and  highest  bidder,  by  bidding  the  full  am  Hint  of  the  execution  and 
costs,  and  taking  the  property  for  the  shortest  time,  to- wit:  the  time  specified 
in  the  charter.  In  consideration  of  the  premises,  and  in  further  consideration 
of  the  purchase  money  paid  as  aforesaid  by  the  said  R.  Y.  McAden,  the 
receipt  whereof  is  hereby  acknowledged,  hath  bargained  and  sold,  and  by  these 
presents  doth  bargain  and  sell  unto  the  said  R.  Y.  McAden  and  his  heirs,  all 
the  right,  title  and  interest  of  the  said  Railroad  Company  as  aforesaid  in  and  to  the 
following  property  levied  on  as  aforesaid,  situate  in  the  State  of  North  Carolina 
and  bounded  as  follows,  to-wit:  Franchise,  together  with  all  the  rights,  privi- 
leges and  property  incidental  thereto,  or  in  any  way  connected  therewith, 
liable  to  be  sold  under  execution  according  to  the  laws  of  North  Carolina. 
To  have  and  to  hold  said  franchise,  property  and  premises,  with  its  improve- 
ments and  appurtenances,  to  him  the  said  R.  Y.  McAden  and  his  heirs  and 
assigns,  in  as  full  and  ample  a  manner  as  the  undersigned  is  empowered  by 
virtue  of  his  office  to  convey  and  assure  the  same.  And  the  undersigned) 
Sheriff  as  aforesaid,  doth  covenant,  promise  and  agree  to  and  with  the  said  R. 
Y.  McAden,  his  heirs  and  assigns,  that  he  and  they  shall  and  may  at  all  times 
hereafter  have,  hold,  occupy  and  possess  said  land  and  premises  free  and  clean 
of  and  from  all  incumbrances  had,  made  or  done  by  the  undersigned,  or  his 
order,  means  or  procurement ;  and  that  the  undersigned  will  forever  warrant 
and  defend  said  land  and  premises  to  the  said  R.  Y.  McAden,  his  heirs  and 
assigns,  so  far  as  his  said  office  of  Sheriff*  will  authorize  and  enable  him  to  do, 
and  no  further. 

In   testimony  whereof,  the  undersigned,  Sheriff  as   aforesaid,  hath  hereunto 
jset  his  hand  and  seal,  this  8th  day  of  July,  1872. 
!     Signed,  sealed  and  delivered  in  presence  of 

Jas.  H.  Merrimon. 

[Seal.j  J-  M.  Young,  Sheriff". 

State  of  North  Carolina,)  In  &e  Prohate  Court. 
Buncombe  County.  ) 
The  execution  of  the  within  deed  from  J.  M.  Young,  Sheriff  of  Buncombe 
Icounty,  to  Rufus  Y.  McAden,  was  this  9th  day  of  July,  1872,  proved  before 
the  undersigned.  Judge  of  Probate  for  said  county,  by  the  oath  and  examination 
bf  Jas.  H.  Merrimon,  the  subscribing  witness  thereto,  therefore  let  the  said 
deed,  together  with  this  certificate,  be  registered. 

J.  E.  Reed, 
Judge  Probate. 
Registered  the  9th  day  of  July,  1872. 

J.  R.  Patterson, 
Register. 


(176) 

Whereas,  on  the  8th  day  of  July,  1872,  the  franchises,  road-bed,  right  of 
way,  privileges  and  profits  of  the  Western  North  Carolina  Railroad  company, 
Western  Division,  was  exposed  to  public  sale  at  the  Court  House  door  in  the 
town  of  Asheville;  and  whereas,  Taos.  L.  Clayton  and  John  C.  Smathers  became 
the  last  and  highest  bidders  for  the  franchise  and  property  as  aforesaid,  all  of 
which  more  fuily  appears  by  the  various  executions  upon  which  said  sale  was 
made;  and  whereas,  for  good  and  sufficient  reaso.is  and  considerations  thereto 
understood  and  expressed,  the  said  Thos.  L.  Clayton  and  John  C.  Smathers, 
transferred  and  assigned  to  Rufus  Y.  McAden,  of  the  county  of  Mecklenburg, 
their  bid  for  the  same  by  which  the  said  R.  Y.  McAden  has  obtain  d  the  deed  of 
tlie  Sheriff  of  Buncombe  county  for  all  the  property  and  rigntsof  property  pass- 
ing by  said  sale.  Now  this  indenture  wittenesseth  that  for  and  in  consideration 
of  premises  and  agreements  made  between  the  parties  and  the  further  considera- 
tion of  one  dollar  to  him  thy  said  R  Y.  M.Aden  in  hand  paid  by  the  said  Thos. 
,  ,  L.  Clayton  and  John  C.  Smathers,  the  receipt  whereof  is  hereby  acknowledged, 
to  trustees,  the  said  R.  Y.  McAden  has  hereby  bargained  and  sold,  and  doth  by  these  pres- 
ents, bargain  and  s>  11,  release  and  quit  claim  to  the  said  Thos.  L.  Clayton  and 
John  C.  Smathers  all  that  portion  of  the  Western  Division  of  the  Western  North 
Carolina  Railroad,  west  of  the  French  Broad  River  to  the  State  line  at  or  near 
Ducktown,  Tennessee,  known  as  the  main  Lne,  together  all  the  franchises, 
privileges,  road-bed,  real  and  personal  property  to  the  same  belonging  or  apper- 
taining, as  well  as  all  the  effects  choses  in  action,  rights,  credits  to  th^  said 
Western  Division  belonging  or  appertaining,  except  a  deed  of  trust  executed  to 
N.  W.  Woodfin  and  R.  W.  Pulliam,  trustees  for  the  Western  Division  of  the 
Western  North  Carolina  Railroad  company  by  G.  W.  Swepson,  and  the  railroad 
office  in  the  town  of  Ashevilie,  which  by  agreement  said  McAden  is  to  retain 
to  his  own  use,  together  with  all  the  adequate  remedies  in  law  and  Equity  to 
collect  and  enforce  the  same  in  trust;  that  the  said  Thos.  L.  Clayton  and  John 
C  Smathers  will  collect  and  control  said  property  and  franchises  for  the  benefits 
and  to  the  use  of  the  said  main  line  of  railroad  from  the  French  Broad  River  to 
the  State  line  at  or  near  Ducktown,  Tennessee,  to  construct  the  same  according 
to  its  present  location  after  paying  and  discharging  whatever  debts  may  remain 
unpaid  against  said  railroad  company  after  the  execution  of  this  deed,  it  being 
the  intention  to  pass  all  the  assests  of  every  description  to  the  said  Thos.  L. 
Clayton  and  John  C.  S.nathers  in  trust  as  aforesaid  except  those  heretofore 
excepted.  In  witness  whereof  the  said  R.  Y.  McAden  has  hereunto  set  his  hand 
and  seal  the  8th  day  of  July,  1872. 

(Interlined  before  signed.)  R.  Y.  McAden,     [Seal.] 

Witness  :     A.  T.  Davidson. 

Buncombe  County.  I  In  the  Probate  Court. 

The  execution  of  the  within  deed  from  R.  Y.  McAden  to  Thos.    L.    Clayton 

and  John  C.  Smathers  was  this  10th  day  of  July,  1872,  proved  before  the  under- 
signed Judge  of  Probate  for  said  county,  by  the  oath  and  examination  of  A.  T. 
Davidson,  the  subscribing  witness  thereto.     Therefore  let  the  said  deed  together 


.  >    (m) 

with  this  certificate  be  registered.  J.  E.  Reed, 

Registered  10th  July,  1872.  Judge  of  Probate. 

J.  R.  Patterson, 

Register. 


R.  R.  Office,  Asheville,  N.  C,  June  25th,  1872. 
Pursuant  to  President's  call,  a  meeting  01  Directors  was   held   at   this   office 
this  day.     Present,  Hon.  N.  W.  Woodfin,  Hon.  A.  T.    Davidson,   Gen.   T.  L. 
Clingman  and  Pinkney  Rollins,  Esq.     A.  T.  Davidson  called  to  the  Chair. 

A  communication  being  received  from  President  W.  W.  Rollins,  stating  that 
he  could  not  reach  here  upon  that  day,  in  consequence  of  sickness  in  his  family, 
and  requesting  Board  to  adjourn  till  to-morrow  morning,  June  26.  Minutes  of  Pi- 

On  motion,  Board  adjourned  until  to-morrow  morning  at  9  o'clock.  ing. 

A.  T.  Davidson,  Pres't  Pro  Tem. 

R.  R.  Office,  June  26,  9  a.  m. 

Board  met  according  to  adjournment.  Present.  W.  W.  Rollins,  President, 
in  the  Chair,  Hon.  N.  W.  Woodfin,  Hon.  A.  T.  Davidson,  Gen.  T.  L.  Cling- 
man and  Pinkney  Rollins,  Esq.     Meeting  called  to  order  by  the  President  ; 

When  it  was  Resolved  d^c.  ;  (Matter  not  relating  to  our  question,)  and  follow- 
ing this,  on  motion  of  Gen.  T,  L.  Clingman, 

It  was  Resolved,  That  the  commissioners  are  requested  to  place  in  the  hands 
of  the  Treasurer,  all  available  moneys  in  their  possession,  to  be  paid  out  forth- 
with to  contractors  and  other  creditors,  pro  rata,  and  that  the  trustees  are  re- 
quested in  like  manner  to  sell,  as  soon  as  practicable,  the  mortgage  lands  of 
George  W.  Swepson,  in  order  that  the  proceeds  of  said  sale  may  be  applied  to 
the  liquidation  of  the  debts  of  the  Company.  Carried.  It  was  then,  on  motion 
of  A.  T.  Davidson, 

Resolved,  That  a  contract  made  by  the  counsel  of  the  creditors,  and  ap- 
proved by  R.  Y.  McA.den,  by  his  agent,  W.  W.  Rollins,  which  provides  : 

1st.  That  the  Road  in  Buncombe  and  Madison  counties  shall  be  sold  under 
executions  now  in  the  hands  of  the  sheriffs  of  said  counties  ;  that  the  same  shall 
be  bought  in  at  said  sale  by  trustees  appointed  by  the  Defendants  in  execution 
and  said  creditors,  to  be  held  in  trust  for  the  purposes  therein  set  forth,  to-wit : 
To  the  payment  of  the  debts  of  the  Company,  and  the  remainder  of  the  assets 
to  be  applied  to  the  construction  of  the  Western  line  of  said  Western  Division 
of  the  Western  N.  C.  R.  R.  from  the  French  Broad  River  to  the  Georgia  line, 
at  or  near  Ducktown,  be,  and  the  same  is  hereby  approved. 

Resolved,  That  Col.  Joseph  Cathey,  of  the  county  of  Haywood,  be,  and  he 
is  hereby  appointed,  trustee  on  behalf  of  this  Company,  for  the  porposes  of  car- 
rying out  the  said  contract.  Adopted  unanimously.  The  contract  referred  to 
in  the  resolution  is  as  follows  : 


Whereas,  The  Western  Division  of  the  Western  N.  C.  R.  R.  Co.  is  in- 
debted to  M.  J.  Fagg  &  Co..  E.  Clayton,  M.  Tabler,  John  H.  Murphy  &  Co., 
Wm.  Bird,  Phillip  Rhea,  A.  T.  Davidson.  Ed.  Vickers,  Dan'l  Dougherty,  W. 
Ames,  J.  B.  Neeley,  Martin  Shea,  Thos.  Steers.  G.  M.  Roberts,  W.  W.  Rollins, 
W.  W.  Hemming  &  Co.,  J.  L.  OffuttJ.  Henry  Shepherd.  L.  M.  Welch,  Pride 
&  Bibb,  Baird,  Rollins  &  Roberts,  G.  M.  Roberts,  trustee,  &c,  and  J.  P.  Ken- 
nedy and  others,  and  the  parties  above  named  have  heretofore  obtained  judg- 
ments in  the  counties  Buncombe  and  Madison  against  said  Company,. upon  said 
indebtedness  and  executions  have  issued  theron  to  sell  the  road  and  road  bed  and 
franchise  in  the  counties  of  Buncombe,  Haywood  and  Madison,  and  the  said 
executions  have  been  levied  on  said  property  of  said  Company,  and  the  same 
has  been  advertised  to  be  sold  on  the  sixth  and  eighth  days  of  July,  prox.,  to 
satisfy  said  judgments  ; 

Axd  Whereas,  It  is  desirable  that  the  said  judgments  should  be  paid,  and 
all  the  further  disputes  and  litigations  between  said  parties  ended,  and  the  road 
completed  as  speedily  as  possible  ; 

Now,  this  agreement  witnesseth  :  That  the  said  corporation  has  appointed 
Joseph  Cathey,  of  the  county  of  Haywood,  and  the  creditors  above  named, 
Thos.  L.  Clayton,  of  the  county  of  Buncombe,  their  agents  or  trustees,  for  the 
purposes  hereinafter  mentioned  and  specified,  to-wit  :  That  they  shall  attend 
at  the  sale,  and  purchase  on  behalf  of,  and  for  the  use  and  benefit  of  said  cred- 
itors, the  road,  road  bed  and  franehise,  with  all  its  rights,  privileges,  &c,  and 
other  property  levied  on,  and  hold  the  same  subject  to  the  execu- 
tions of-  said  creditors,  and  subject  to  the  following  conditions  herein 
agreed  upon,  it,  whether  the  assets  passed  by  the  sale  or  not,  it  is  agreed 
they  shall  pass  the  said  trustees  by  this  agreement,  by  virtue  of  said  sale.  The 
said  trustees  are  directed  to  reconvey,  bv  such  instrument  as  may  be  necessary, 
the  said  assets  to  said  corporation,  or  any  one  by  them  selected,  to  be  held  in 
trust,  after  such  claims  are  actually  and  fully  paid  up,  for  the  construction  of 
the  Road  on  the  main  line  West  of  the  French  Broad  River.  And  if  any  part 
of  said  main  line,  West  of  French  Broad  River,  road  bed,  franchise,  privileges 
&c,  pass  to  said  purchasers  by  said  sale,  that  portion  is  to  be  reconvened  in 
like  manner  as  the  assets. 

If  the  ';aid  creditors  can  find  a  purchaser  who  can  take  the  road.  French  Broad 
Branch,  paying  said  debts  and  claims,  leaving  the  assets  undisturbed,  the  said 
trustees  shall  convey  (he  title  to  said  French  Broad  Branch  of  the  said  Railroad 
to  said  purchaser.  If  they  do  not  find  such  purchaser,  the  trustees  are  to  hold 
said  title,  and  the  contractors  and  creditors  will  not  release  any  claim  which 
they  may  now  have  on  said  assets  for  the  payment  of  their  claims  and  other 
stock  ;  and  it  is  further  agreed,  that  if  any  party  shall  advance  the  money  to 
pay  the  said  creditors  the  full  amount  of  their  claims  and  the  costs  of  their  suits, 
the  said  trustees  shall  forthwith  convey  to  said  party,  the  Road  so  purchased  by 
them,  and  the  said  party  so  purchasing  and  advancing  as  aforesaid,  is  to  be  re- 
paid the  amounts  so  advanced  from  said  assets  -with  interest,  but  the  party  so 
advancing  shall  have  no  recourse  on  said  creditors  for  the  amount  so  advanced. 
That  whether  the  assets  pass  by  the  said  sale  or   not,  it   is  hereby    understood 


(i79) 

that  said  assets  shall,  by  force  of  this  agreement,  vest  in  the  trustees  herein  ap- 
pointed, to  be  used  and  disposed  of  by  them  as  hereinbefore   provided. 

If,  however,  the  trustees  and  creditors  are  unable  to  find  a  purchaser  or  pur- 
chasers under  the  terms  and  conditions  hereinbefore  provided,  it  shall  then  be 
the  duty  of  the  trustees,  by  and  under  the  direction  of  the  creditors,  to  convey 
the  said  French  Broad  line  to  any  party  who  will  build  and  complete  the  same. 
The  said  creditors  by  so  doing  do  not  release  any  claim  or  lien  on  the  said  as- 
sets, and  the  said  trustees   retaining  the  assets  as  hereinbefore  provided. 

In  witness  whereof  the  various  parties  have  hereto  set  their  hands.  This 
26th  day  of  June,  1S72. 

The  Western  North  Carolina  R.  R.,  Western  Division, 
(Signed,)  By  its  President,  W.  W.  Rollins. 

M,  J.  Fagg  &  Co.,  by  J.  H.  Merrimon,     Attorney, 

"  E.  Clayton,  "  J.  H.  Merrimon,  " 

M.  Tabler,  "  J.  H.  Merrimon.  " 

"  John  H.  Murphy,  "  J.  H.  Merrimon,  " 

"  A.  T.  Davidson,  "  J.  H.  Merrimon,  " 

(Signed)  :  Wm.  Bird,  Phillip  Rhea,  E.  Vickers,  Dan'l  Dougherty,  W.  Ames, 
J.  B.  Neely,  Martin  Shea,  Thos.  Steers,  G.  M.  Roberts  and  W.  W.  Rollins, 
W.  W.  Flemming  &  Co..  J.  L.  Oftut,  J.  Henry  Shepherd,  L.  M.  Welch,  Pride 
&  Bibb,  Baird,  Rollins  &  Co.,  G.  M.  Roberts,  Trustee,  and  J.  P.  Kennedy,  by 
ther  Attorney,  Theo.  F.  Davidson. 

Endorsed  :  We,  as  commissioners  of  this  Company,  approve  this  agreement 
and  assent  to  its  execution.     June  26t:i,  1872. 

(Signed,)  N.  W..  Woodfin, 

(Signed,)  W.  W.  Rollins, 

(Signed,)  W.  G.  Candler. 

I  approve  the  within  agreement  so  as  to  allow  the  trustees  mentioned,  to  pay 
the  debts  with  the  assets,  and  for  the  purposes  of  this  agreement,  release  all 
claims  on  the  said  assets,  provided  the  Road  is  sold  as  agreed  upon. 

(Signed,)  R.  Y.  McAden, 

Per  W.  W.  Rollins,  Agent. 

Order  spread  upon  record. 

There  being  no  further  business,  the  Board,  on  motion,  adjourned  to  Fiiday, 
July  5th,  1872.  W.  W.  Rollins,  President. 

G.  M.  Roberts,  Secretary. 

R.  R.  Office,  Asheville,  N.  C,  July  5,  1872. 
Board  of  Directors  met  this,  Friday  July  5th,  at  3  o'clock,  P.  M.,  according 
to  adjournment.  Present :  W.  W.  Rollins,  President,  in  Chair;  Hon.  A.  T. 
Davidson,  Hon.  N.  W.  Woodfin,  Gen.  R.  M.  Henry,  P.  Rollins,  and  J.  H. 
Rumbough,  Esq.,  when  the  meeting  was  called  to  order.  Col.  Jno.  Cathey 
having  declined  to  serve  as  trustee,  as  per  former  resolution,  J.  C  Smathers, 
Esq.,  was  upon  motion  selected  in  his    stead,    who    subsequently    consented. 


(iSo) 

There  being  no   further  business,    adjourned  to  3  o'clock,  P.  M.,  Saturday, 
July  6th. 

Saturday,  July  6th,  '72,  3  o'clock  P.  M. 
Board  met  pursuant  to  adjournment.     Present  same  as  yesterday.     On  motion 
■  adjourned  to  Monday,  July  8th,  at  9  o'clock,  A.  M. 

Monday,  July  8th,  '72,  9  o'clock,  A.  M. 
Board  met  according  to  adjournment.     Present :     W.  W.  Rollins,  President, 
jn  Chair;    Hon.  N.  W.  Woodfin,    Hon.  A.  T.  Davidson,    Gen.    R.    M.    Henry, 
P   Rollins  and  J.  H.  Rumbough.     When  the  following  was  submitted  by  R.  Y. 
McAden,  Esq. : 

Asheyille,  N.  C,  July  8th,  1872. 
To  the  President  and  Directors  of  the  Western  North  Carolina  Railroad,    Wes- 
tern Division : 
Gentlemen  :  — 

I  am  advised  by  attorneys  in  North  Carolina  learned  in  the  law,  and  by  Hon. 
Theo.  Cuyler,  of  Philadelphia,  the  attorney  of  the  Pennsylvania  Central  Road, 
that  I  own  the  Western  North  Carolina  Railroad  from  Salisbury  to  Ducktown 
and  to  Paint  Rock,  also  the  entire  property  of  said  company,  including  all  claims 
due  to  said  company.  I  feel  that  it  would  not  be  just  in  me  to  claim  this  en- 
tire property  unless  the  parties  who  have  done  the  work  on  the  road  are  paid. 
Proposition  of  To  accomplish  this,  and  to  settle  all  matters  in  dispute,  and  thereby  secure  the 
a  c  vden.  early  construction  of  the  road,  I  make  this  proposition  :  That  for  the  note  or 
draft,  due  by  George  W.  Swepsonfor  about  one  hundred  and  sixty-four  thousand 
dollars,  secured  by  mortgage  on  lands,  assigned  to  me,  without  recourse  on  the 
company,  and  the  conveyance  of  the  lands  mentioned  in  the  deed  of  trust,  to 
me,  and  for  the  Sheriff's  deeds  to  the  French  Broad  branch,  I  will  pay  to  the 
treasurer  of  the  company,  fifty  thousand  dollars  in  cash,  to  be  paid  to  the  con- 
tractors, and  will  convey  to  the  company  all  my  rights  acquired  by  reason  of 
purchase  at  execution  sale  to  the  Ducktown  branch  and  the  property  of  the 
company,  i  eluding  claims  vs.  Swepson,  Hopkins,  Littlefield  &  Co. 

Respectfully, 

(Signed.)  R.  Y.  Mo  Aden. 

Whereupon  the  foregoing  proposition  was  fully  discussed  and  understood  by 
the  members  present,  when  A.  T.  Davidson  offered  the  following   resolution  : 

Resolved,  that  the  proposition  of  R.  Y.  McAden  submitted  to  the   Board,  this 
/  n^eptance.  of 
McAn'en's pro-  July  8,  1872,  proposing  to  pay  $50,000  00  for  the  debt  on  Geo.  W.  Swepson  for 

position.  $164,400.00  and  the  lands  pledged  for  the  samv,  and  judicial  title  for  the  Fretujbi 
B:0.adline,  of  the  W.  D.  W.  N.  C.  R.  R.  and  his  further  oral  proposition  to 
pay  the  sum  of  $5,000.00  for  the  railroad  office  and  lot  in  the  town  of  Asheville, 
be  aud  the  same  is  hereby  accepted,  and  that  the  trustees  to  execute  the  deed  of 
trust  in  which  the  lands  are  pledged  for  the  debt  be  directed  to  convey  to  the  said 
R.  Y.  McAden  by  proper  releases  and  acquittances,  the  interest  of  this  com- 
pany in  said  debt  and  lands  so  pledged,  without  recourse  on  said  company. 
And  that  the  trustees  of  the  funds  and  assets  of  this  company  be  instructed  to 
convey  to  the  said  R.  Y.  McAden  such  title  as  they  may  derive  at  Sheriff's  sate 
i'or  the  said  French  Broad  road,  upon  the  payment  of  the  sum    of  $55,000.00 


(iSi) 

being  the  amount  in  his  written  proposition  and  oral  offer  for  the  railroad  office, 
and  paying  the  expenses  incidental  to  the  execution  and  litigation  of  said  deed 
of  trust  now  in  suit,  and  said  R.  Y.  McAden  executing  to  the  trustees  of  the 
assets  aforesaid,  a  release  in  due- form  of  law  to  the  main  line  from  the  French 
Broad  River  to  Ducktown,  Tennessee,  and  all  the  assets  of  the  company  other 
than  those  specially  conveyed  by  this  resolution.  The  question  recurring  upon 
the  passage  of  the  resolution,  Gen.  R.  M.  Henry  demanded  the  yeas  and  nays 
which  being  ordered,  resulted  as  follows  :  Yeas,  N.  W.  Woodfin,  A.  T.  David- 
son, J.  H.  Rumbough,  W.  W.  Rollins  and  Pinkney  Rollins.  Nay  :  R.  M. 
Henry.  So  that  the  resolution  was  declared  adopted.  On  motion  it  was  further 
ordered  that  the  President  W.  W.  Rollins,  notify  said  R.  Y.  McAden  of  the 
acceptance  of  his  propositions. 

The  President  notified  the  Directors  that  he  had  complied  with  their  order, 
and  that  the  said  R.  Y.  McAden  signified  his  acceptance  of  the  same  according 
to  the  foregoing  resolution.  Whereupon  it  was  ordered  that  the  President  be 
authorized  and  directed  to  have  prepared  the  necessary  papers,  conveyances, 
&c'.,  to  cany  into  execution  the  said  contract.  On  motion  adjourned  to  meet 
upon  call  of  the  President.  W.  W.  Rollins, 

G.  M.  Roberts,  Secretary.  President. 

CALLED  MEETING 

Asheville,  N.  C,  Tuesday,  July,  9,  '72. 

Board  of  Directors  met  pursuant  to  call  of  President.  Present :  W.  W. 
Rollins,  President,  in  the  Chair;  Hon.  N.  W.  Wooifin,  Hon.  A.  T.  Davidson,  J. 
H.  Rumbough,  Pinkney  Rollins  and  Gen.  R.  M.  Henry. 

On  motion  of  N.  W.  Woodfin,  Lawrence  Pull  .am  be  allowed  the  sum  of  two 
hundred  dollars  for  auditing  accounts  vs.  George  W.  Sweps  ,n  and  detecting  an 
error  of  ten  thousand  dollars  in  company's  favor. 

On  motion  of  Col.  A.  T.  Davidson,  the  following  resolutions  were  adopted, 
viz :  Resolved,  That  the  commissionersjjbe  directed  to  pay  the  funds  on  hand 
to  the  contractors  and  creditors  as  follows  ;  First  to  the  payment  of  all  the 
judgments,  cosls,  and  expenses  of  the  same,  and  in  the  same  ratio  on  all  the 
admitted  debts  of  the  company,  and  if  a  surplus  shall  remain  on  hand  after  the 
payments  hereby  directed,  the  same  shall  be  subject  to  the  future  order  of  the 
Board  of  Directors,  subject  to  all  the  equities  of  the  parties. 

Resolve  /,  That  it  is  the  intention  on  the  part  of  this  Board  of  Directors,  to 
settle  the  matters  in  dispute  on  the  most  liberal  terms  an  1  basis  in  view  of  all 
the  facts  invo'.ved  in  the  various  case',  and  that  they  will  not  stand  on  the  strict 
legal  rights  of  the  parties  in  the  permises. 

Resolved,  That  the  Board  of  Directors  will  meet  in  the  town  of  Asheville,  on 
the  12th  day  of  August,  1372,  for  the  purpose  of  aljust'uig  these  matters.  On 
motion  of  N.  W.  Woodfin,  the  Secretary  is  ordered  to  notify  the  absent  Directors 
of  the  passage  of  the  above  last  named  resolution  and  for  them  to  attend  at  that 
time.     On  motion  adjourned.  W.  W.  Rollins, 

G.  M.  Roberts,  Secretary.  President. 


(lS2) 


(i83) 


(i84) 


Summons. 


M.J.  FAGG  AND  OTHERS,  VS.  THE  WESTERN  DIVIS- 
ION   OF    THE    WESTERN    N.    C.  RAILROAD,    AND 
•  OTHERS. 


State  of  North  Carolina,     j 
Buncombe  County.  \ 

M- J-  Fagg  and  W.  R.  Ray,  as   M.   J.  Fagg   &    Co.,1 

vs. 
The  Western  Division  of  the  Western  North   Caroli 

na  Railroad  Company  and    N.    W.    Woodfin,    W 

W.  Rollins,  W.  G.  Candler,  J.  L.  Henry  and    W.  I 

P.  Welch,  Commissioners.  J 

Be  it  remembered  that  on  the  3d  day  of  September,  1872,  the 
Clerk  of  the  Superior  Court  of  Buncombe  County  issued  the  fol- 
lowing summons  : 

Buncombe  County,  | 

In  the  Superior  Court.) 

M.  J.  Fagg  and  W.  R.  Ray,  as  M.  J.  Fagg  &  Co.,  ] 

against  \ 

The  Western  Division  of  the  Western  North  Car-  I  o  ,„,^,„„„ 

olina  Railroad  Company,  and  N.  W.    Woodlin.   '^' 

W.  W.  Rollins,  W.  G.  "Candler,  J.    L.    Henry 

and  W.  P.  Welch,  Commissioners. 

The  State  of   North  Carolina  ; 

To  the  Sheriff  of  Buncombe  County, — 'Greeting  : 

You  are  hereby  commanded  to  summon  the  Western  Division  of  the  West- 
ern North  Carolina  Railroad  Company,  and  N.  W,  Woodfin,  W.  W.  Rollins, 
W.  G.  Candler,  J.  L.  Henry  and  W.  P.  Welch,  Commissioners  appointed  by 
act  of  the  General  Assembly,  in  behalf  of  said  Company  the  defendants  above 
named,  if  they  be  found  within  your  county,  to  be  and  appear  before  the  Judge 
of  our  Superior  Court,  at  the  Court  to  be  held  for  the  county  of  Buncombe,  at 
the  Court  House  in  Asheville,  on  the  4th  Monday  after  the  4th  Monday  of 
August,  1872,  and  answer  the  complaint  which  will  be  deposited  in  the  office  of 
the  Clerk  of  the  Superior  Court  of  said  county  within  the  first  three  days  of  the 
next  term  thereof,  and  let  the  said  defendant  take  notice  that  if  they  fail  to  an- 
swer the  said  complaint  within  that  time,  the  plaintiff  will  take  judgment 
against  the  said  Company  and  said  Commissioners,  for  the  relief  demanded  in 
said  complaint. 

Hereof  fail  not,  and  of  this  summons  make  due  return. 


(  i85  ) 

Given  under  my  hand  and  the  seal  of  said  Court,  this,  3d  day  of  Sept.,  1S72. 
'   [Seal,]  J.  E.  Reed, 

Clerk  Superior  Court  Buncombe  County. 

On  this  summons  is  the  following  endorsement  : 

Served  1S7         as  to  all  except  Welch,  not  found  in  my  county. 

J,  M.  Young,  Sheriff  Buncombe  Co. 

At  Fall  Term,  1872,  of  the  Superior  Court,  of  Buncombe  county, 
the  plaintiffs  filed  the  following  complaint,  to  wit  : 

SUPEEIOR  COTTKT,  \ 

Buncombe  County,    J 

M.  J.  Fagg  and  W.  R.  Rat,  Plaintiffs,  "1 

Aagainst  I 

The  Western  Division    of    the  Western  North   Carolina  Innm„iQint 

Railroad  Company  and  N.  W.  Woodfin,    W.  W.  Rollins,  f  <-°rapiamt. 

W.  G.  Candler,  J  L.  Henry  and  W.  P.  Welch,    Commis-  | 

sioners,  Defendants.  J  Complaint. 

The  plaintiffs  allege  : 

1.  That  they  are  partners  under  the  firm  name  of  M.  J.  Fagg  &  Co. 

2.  That  the  defendant  is  a  corporation  duly  chartered  and  organized  under 
the  laws  of  North  Carolina. 

3.  That  said  defendant  became  indebted  to  the  plaintiff  for  work  and  labor 
done  upon  defendant's  road  in  the  sum  of  about  $32,749.81  of  which  amount 
there  remains  due  and  unpaid  the  sum  of  about  flf te'jn  hundred  and  forty-five 
dollars  and  twenty  cents,  principal  with  interest  on  the  monthly  estimat  es  of  the 
defendant's  engineer.    ' 

4  That  by  an  act.passed  by  the  General  Assembly  entitled  "An  act  to  provide 
for  the  completion  of  the  Western  Division  of  the  Western  North  Carolina 
Railroad,"  ratified  on  the  24th  of  March,  1870,  and  assented  to  by  said  defendants, 
N.  W.  Woodfin.  W.  W.  Rollins,  W.  G.  Candler,  J.  L.  Henry  and  W.  P.  Welch 
were  constituted  a  commission  with  the  duty  among  other  things  imposed  upon 
them  of  collecting  and  receiving  the  funds  and  other  assets  of  the  said  company, 
and  placing  the  same  in  some  safe  bank,  and  paying  out  of  the  same  the  just 
debts  of  the  said  company,  first  as  well  as  to  provide  for  the  payment  of  con- 
tractors and  others  for  the  construction  of  said  road  in  future. 

5.  That  by  another  act  passed  by  the  General  Assembly  ratified  on  the  13th 
day  of  December,  1871,  it  is  made  the  duty,  among  other  things,  of  such  mem- 
bers of  the  commission  as  accepted  and  undertook  to  dis  charge  the  duties  pres- 
cribed by  the  first  mentioned  act,  to  pay  out  of  any  monies  remaining  in  their 
hands  to  contractors  who  ha  ve  done  work  on  defendant's  road  any  sum  or  sums 
of  money  justly  due  them  for  such  work  then  remaining  unpaid. 

6,  That  sufficient  funds  came  to  thra  hands  of  said  commissioners  (who  accep- 
ted and  undertook  to  discharge  the  duties  imposed  by  the  first  mentioned  act) 
to  pay  off  and  discharge  the  plaintiff's  debt,  if  the  said  commissioners  had  dis- 
bursed the  same  in  accordance  with  the  provisions  and  requirements  of  said  act. 


(iS6) 

7.  That  instead  of  applying  the  said  funds  to  the  payment  of  plaintiff's  debt 
as  required  by  law  the  siid  commissioners  have  misappropriated  the  same,  have 
failed  to  deposit  the  same  in  any  safe  bank,  but  as  the  plaintiff  is  informed  and 
believes,  and  expressly  avers  have  expended  a  large  portion  thereof  in  the 
prosecution  of  certain  suits  in  the  city  of  Ne w  York  and  elsewhere,  and  have 
deposited  other  large  sums  thereof  with  unknown  parties  as  collateral  security 
for  the  prosecution  of  said  suits. 

8.  That  the  plaintiff  has  reason  to  believe  and  does  believe  that  the  said  com- 
missioners are  continuing  and  will  continue  to  misappropriate  said  funds,  and 
if  permitted  to  do  so  the  plaintiffs  will  lose  their  said  debt  : 

1.  Wherefore  the  plaintiffs  demand  judgment  for  the  sum  of  $1,545  20  with 
interest  on  the  engineer's  monthly  estimates  from  the  30th  day  of  Sept.  1889. 

2.  For  an  order  restraining  and  enjoining  said  defendants  from  disposing  of 
said  fund  and  from  using  the  same  for  any  other  purpose  than  the  payment  of 
plaintiffs,  and  the  other  just  debts  of  said  company. 

3.  For  a  receiver  to  collect  and  receive  said  f and  and  hold  the  same  subject 
to  the  order  of  this  Court. 

4.  For  such  other  and  further  relief  as  to  justice  and  right  may  appertain. 

5.  For  the  costs  of  this  action. 

Vaxce  &  Merrimon, 
Attorneys  for  Plaintiffs. 

M.  J.  Fagg  bein?  duly  sworn  says  :     I  have  heard  the  foregoing    complaint 
Vernation,     read,  and  know  its  contents;  the  same  is  true  of  my  own  knowledge   except  as 
to  such  matters  therein  stated  on  information  and  belief,  and  as  to  those  matters 
1  believe  it  to  be  true.  M.  J.  Fagg. 

Sworn  and  subscribed  the  26th  day  of  September,  1872. 

J.  E.  Reed,  Clerk,  &c. 

At  Fall  Term.  1872,  the  defendant,  the  Western  Division  of  the 
Western  North  Carolina  Railroad  Company    filed    the    following 

answer,  to  wit : 

*  nswer  of  W.  „  r.  -, 

D.  w.  N.  c.  Superior  Court,        \ 
k.  R.bo.  Buncombe  County.) 

M.  J.  Fagg  &  Co.,  Plaintiffs,  1 

Against 
The  Western  Division  of  the   Western  Norsh  Carolina  ! 

Railroad  Company,  and  N.    W.    Woodfin,    W.    W 

Rollins,    W.    G.    Candler,   J.    L.    Henry  and  W.  P.  | 

Welch,  Defendants.  J 

The  defendant,  the  Western  Division  of  the  Western  North 
Carolina  Railroad  Company  alleges  : 


( *s7 ) 

•    1st.     Tbat  the  first  and  second  allegations  in  plaintiff's  complaint  are  true. 

2d.  That  the  allegation  in  the  3d  paragraph  of  plaintiffs'  complaint  of  a  bal- 
ance due  by  defendants  to  plaintiffs,  of  fhteen  hundred  and  forty-five  dollars 
and  20  cents,  or  any  other  amount,  is  untrue,  as  defendant  is  informed  and  be- 
lieves. 

3.  That  the  facts  set  forth  in  the  4th  paragraph  of  plaintiffs'  complaint  are 
in  part,  true,  but  the  material  fact  is  suppressed;  that  the  board  of  commission" 
ers  therein  named,  under  tue  act  of  the  General  Assembly  therein  referred  to' 
were  to  act  under  the  direction  of  the  board  of  directors,  of  said  Railroad  Com  - 
panv,  as  to  any  further  work  on  said  Road. 

4.  That  the  4th,  5th,  6th  and  7th  p  aragraphs  of  plaintiffs'  complaint,  relate 
■exclusively  to  the  commissioners  in  said  complaint  named  ;  and  their  answer 
on  file  in  this  cause,  is  referred  to  as  true,  and  as  containing  a  full  answer  to 
the  matters  therein  alleged. 

The  defendant,  for  a  further  answer  to  the  said  complaint,  al- 
leges : 

1st.  That  the  plaintiff  ought  not  to  have  or  maintain  this  action,  for  that 
before  the  bringing  thereof,  to-wit :  At  Spring  Term,  1872,  of  the  Superior 
Court  of  Buncombe  county,  aforesaid,  in  an  action  then  and  there  depending 
between  this  plaintiff  and  this  defendant,  for  balance  due  on  account  of  the  work  on 
said  Railroad  hereinbefore  mentioned  and  referred  to,  the  said  plaintiff  had  and 
recovered  of  this  defendant,  a  judgment  for  the  full  balance  due  said  plaintiff 
on  account  of  all  the  labor  performed  by  said  plaintiff  for  said  defendent,  as  ' 
aforesaid,  which  said  judgment  has  been  paid,  satisfied  and  discharged,  since  its 
rendition. 

Wherefore,  defendant  demands  judgment  for  the  costs  of  this  action. 

A.  T.  &  T.  F.  Davidson, 
M.  Erwin, 
Woodfin  &  McLoud. 

Att'ys  for  Def'ts. 

W.  W.  Rollins,  being  duly  sworn,  says  : 

I  am  the  President  of  the  Western  Division  of  the  Western  North    Carolina 
Railroad  Company,  the  defendant  in  this  action  ;  that,  I  have  heard    the   fore-  Verification, 
going  read,  and  know  the  contents  thereof  to  be  true,  of  my    own    knowledge, 
except  as  to  matters  stated  on  information  and  belief,  and    those  I  believe  to  be 
true.  W.  W.  Rollins. 

Sworn  and  subscribed  before  me  the  5th  day  of  October,  1872. 

J.  E.  Reed,    Clerk. 

At  said  Fall  Term.  1872,  the  defendants,   N.    W.  Woodfin,  W. 


(iSS) 

W.  Rollins  and  W.  G.  Candler,  commissioners,    filed    the    follow- 
ing.: 

SEPARATE      ANSWER. 

North  Carolina,  )    Superior  Court,  Fall  Term,  1S72. 

Buncombe  County.  \ 

M.  J.  Fagg   &    Co.,  Plaintiffs,  ) 

vs. 

The  Western  Division  of  the  Western  North  Caroli- 
na Railroad  Company  and  N.  W.  Woodfin,  W. 
W.  Rollins,  W.  G.  Candler,  J.  L.  Henry  and  W. 
P.'' Welch,  Defendants. 

The  defendants,  N.  W.  Woodfin,  W.  W.   Rollins   and    W.    G. 
Answer  of  Candler,  answering  the    complaint    of  the    plaintiffs  herein,  for  a 
defence  thereto,  say  : 

1.  That  plaintiff  cannot  maintain  this  action,  for  that  these  defendants  are 
not  liable  to  be  sued,  except  according  to  the  provisions  of  Section  3,  of  Chap 
ter  9,  of  the  Acts  of  the  General  Assembly  of  the  State  of  North  Carolina, 
passed  at  its  session  of  1871-72  ;  and  further,  because  the  said  defendants  are 
improperly  joined  with  the  other  defendant,  to-wit :  The  Western  Division 
of  the  Western  North  Carolina  Railroad  Company. 

2.  «That  since  the  passage  of  the  said  last  named  act  of  the  General  Assem- 
bly, the  defendants  have  complied  with  the  provisions  of  the  said  act,  and  have 
made  no  default  in  the  performance  of  any  duty  imposed  upon  them  by  virtue 
of  said  act. 

3.  That  nothing  appears  upon  the  complaint  to  authorize  the  relief  therein 
prayed  for,  to-wit  :  An  order  restraining  and  enjoining  these  defendants  from 
using  the  funds  now  in  their  hands,  for  any  other  purpose  than  the  payment 
of  plaintiff  and  others,  in  like  case  with  himself,  and  for  the  appointment  of  a 
Receiver,  &c. 

4.  That  they  have  never  misappropriated  any  portion  of  the  said  fund  which 
has  come  into  their  hands,  but  on  the  contrary,  have  applied  and  disbursed  it 
according  to  law,  and  under  the  order  and  direction  of  the  Board  of  Directors 
of  the' Western  Division  of  the  Western  North  Carolina  Railroad  Company, 
as  is  provided  by  law. 

5.  That  when  defendants  took  upon  themselves  the  responsible  duties  im- 
posed by  the  act  of  the  General  Assembly  referred  to  in  plaintiffs' complaint, 
they  found  the  assets  of  the  Company  either  wasted  entirely,  or  involved  in 
disputes  and  litigation,  which  required  time  and  the  necessary  expenditure  of  a 
large  amount  of  money  to  secure  or  recover  anything  at  all.  Combinations  of 
wealthy  and  influential  parties  in  New  York,  Brooklyn,  Detroit  and  London, 
were  able  to,  and  did,  by  various  means,  obstruct,  hinder  and  delay,  for  a  long 
time,  and  at  great  costs,  and  still  delay,  the  enforcement  of  the  rights  •  with 
which  the  commission  was  entrusted.  The  State  of  North  Carolina  and  the 
Railroad  Company,  whose  interests  the  commission  primarily  represented,  had 


(  iSp) 

neither  of  them  any  credit  or  commercial  standing  in  New  York  or  abroad, 
and  furnished  no  means  for  the  prosecution  and  expense  of  collecting  the 
claims  entrusted  to  the  commission.  Heavy  bonds  had  to  be  given  before  pro- 
ceedings could  be  instituted  to  enforce  the  contested  rights  of  the  Railroad 
Company,  and  in  order  to  give  such  bonds  in  New  York  and  elsewhere,  cash 
or  collaterals  equivalent  thereto,  had  to  be  deposited  with  those  who  were  in- 
clined to  befriend  these  defendants  in  their  litigation.  Almost  every  dollar 
which  has  been  collected,  has  been  collected  at  the  end  of  a  law  suit,  or  upon  a 
compromise  of  a  suit  for  it,  except  the  first  fifty  thousand  dollars,  and  some  in- 
considerable sums  which  were  paid  on  a  compromise  without  suit. 

6.  That  there  is  now  on  deposit  in  solvent  Banks,  in  the  City  of  New  York,, 
the  sum  of  $11,229.26,  (eleven  thousand  two  hundred  and  twenty-nine  dollars, 
and  26  cents,)  as  appears  by  the  report  of  the  treasurer  of  the  commission,  W- 
W.  Rollins,  hereto  appended,  and  that  sum  constitutes  the  whole  fund  availa- 
ble now  to  defendants  for  any  purpose. 

7.  The  amount  thus  deposited,  as  above  alleged,  is  what  remains  of  a  large 
deposit  made  prior  to  the  13th  of  December,  1871,  to  cover  the  necessary  ex- 
penses, costs,  counsel  fees  and  liabilities  of  the  securities  upon  the  bonds  of  the 
commissioners  and  the  Railroad  Company,  on  account  of  suits  instituted  and 
pending  prior  to  the  said  13th  day  of  December,  1871,  in  the  City  of  New 
York,  with  J.  W.  Hopkins  &  Co.,  for  $800,000,  in  Florida  bonds,  and  with 
John  Collison,  in  the  City  of  New  York  and  the  City  of  London,  involving 
the  title  to  $800,000  Florida  8  per  cent,  bonds,  and  with  the  Jacksonville,  Pen- 
sacola  and  Mobile  Railroad  Company,  of  Florida,  against  the  Western  Division 
Western  North  Carolina  Railroad  Company,  and  against  the  defendants,  as 
commissioners,  and  a  cross  action  by  the  Railroad  Company  against  them,  in- 
volving over  a  million  of  dollars,  directly  and  indirectly  claimed  from  them  as 
the  recipients  from  George  W.  Swepson,  of  that  amount  of  the  fnnds  of  the 
Western  Division  of  the  Western  North  Carolina  Railroad  Company,  and  a 
suit  in  Detroit,  Michigan,  against  J.  W.  Hopkins  &  Co.,  and  the  Michigan 
Peninsula  Railroad  Company,  involving  title  to  about  $80,000  worth  of  Rail- 
road iron,  and  a  suit  against  E.  Houston,  in  the  City  of  New  York,  involving 
a  large  amount  of  costs,  and  in  which  a  heavy  bond  was  necessary  to  be  filed, 
in  order  to  obtain  an  injunction  to  restrain  the  sale  of  a  million  of  dollars  worth 
of  bonds,  and  several  hundred  thousand  dollars  of  stocks. 

8.  That  the  necessary  expenses  of  the  litigation  mentioned  above,  with  the 
amount  of  the  bonds  required  to  carry  it  on,  is  greatly  in  excess  of  the  said 
sum  now  on  deposit  in  the  City  of  New  York,  and  one  of  these  defendants,  W. 
W.  Rollins,  is  personally  responsible  for  the  same. 

9.  That,  inclusive  of  the  amount  of  the  New  York  deposit  above  mentioned 
the  whole  amount  of  receipts  and  disbursements  heretofore  had  and  made  by 
these  defendants  accounted  for  in  former  reports  (to  which  reference  is  made) 
of  the  commission,  is  about  $298,000,  (two  hundred  and  ninety-eight  thousand 
dollars,)  all  of  which  sum  has  been  paid  at  various  times,  upon  the  order  and 
by  the  direction  of  the  Board  of  Directors  of  the  Western  Division  of  the  West- 
ern North  Carolina  Railroad  Company,  as  provided    by    law,    and  which  will, 


(190) 


Verificrtion. 


Exhibit. 


at  any  time  the  Court  may  direct,  be  more  particularly  set  forth  and    exhibited 
for  its  information,  if  required. 

10.  That  so  far  as  these  defendants  are  advised  it  is  necessary  for  them  to 
answer  the  allegations  of  the  plaintiff's  complaint  that  he  is  entitled  to  an  unpaid 
balance  from  them  or  the  other  defendant  the  railroad  company  aforesaid,  they 
say  :  that  in  June,  1871,  the  defendants  had  in  hand  about  fifty-eight  thous- 
and dollars;  that  about  that  time  the  Board  of  Directors  of  said  road  having  dis- 
covered erroneous  estimates  of  the  value  of  the  work  done  by  contractors  upon 
their  road  to  a  large  amount,  ordered  the  defendants  to  suspend  all  further  pay- 
ments to  contractors,  and  among  such  to  the  plaintiff,  on  account  of  their  work, 
until  a  re-estimate  thereof  should  be  made;  that  upon  said  re-estimate  having 
been  made,  by  which  the  said  railroad  company  saved  about  $27,000  (twenty- 
seven  thousand  dollars,)  judgment  was  taken  by  the  contractors  including  the 
plaintiff  for  their  demands  against  said  railroad  company,  upon  the  re-estimate 
of  their  work,  and  according  to  that  valuation  of  their  work  this  plaintiff  has 
been  paid  on  an  order  from  the  Board  of  Directors  aforesaid,  b}'  the  defendants. 

Wherefore  defendants  demand  judgment  for  the  costs  of  this  action. 

A.  T.  &  T.  F.  Davidson, 
M.   Ekwin, 

WOODFIN  &  McLoiTD, 

Attorneys  for  Defendants. 

N.  W.  Woodfin  being  duly  sworn,  says  :  I  have  heard  read  the  foregoing 
answer,  and  know  the  contents  thereof;  that  the  same  is  true  of  my  own  know- 
ledge, except  as  to  matters  therein  stated  on  information  and  belief,  and  as  to 
those  he  believes  it  to  be  true.  N.  W.  Woodfin. 

Sworn  and  subscribed  before  me  the  5  October,  1872 

J.  E.  Reed,  C.  S.  C. 

Hon.  N.  W.  Woodfin,  Chairman  of  commission  :     I  have  the  honor  to  submit 
the  following  report  as  to  monies  received  and  disbursed  as  treasurer  of  the 
commission  since  my  last  report,  Nov.  14,  1871  : 
1872. 

Receipts— on  hand  last  report,  $44,769  99 

Received,  R.  Y.  McAden,  55,000  00 


1872. 

Disbursed  to  G.  M.  Roberts,  treasurer, 
March  1st,  J.  L.  Henry,  balance  expense  as  commissioner, 

"         '■    N.  W.  Woodfin,  expense  to  New  York, 
February  21,  Franklin  Ellis, 
January  26,  J.  L.  Henry,  expense  to  Washington, 

"  28  A.  T.  Davidson,     "  " 

1871,  Dec.  1st,  N.  W.  Woodfin,  balance  traveling  expense, 

1872,  August  15,   "  "  "  Trustee, 

R.  W.  Pulliam, 
•'        "  "CM.  McLoud,  Attorney  of  Trustees, 


<99,769  99 

79,398  66 
609  00 
500  00 
300  00 
500  00 
500  00 
583  07 
500  00 
500  00 

'   100  00 


200 

00 

1,000 

00 

100  00 

100 

00 

.500 

00 

600 

00 

250  00 

2,175  00 

125  00 

(*90 

July  6th,  Franklin  Ellis, 

"    8th,  N.  W.  Woodfin,    Attorney, 

1871,  Dec.  13,  G.  W.  Wagner,  Esquire, 
"    Nov.  24,   "     " 

1872,  July    8,  A.  T.  Davidson,  Attorney, 
"         "10,  Marcus  Erwin,  Attorney  and  expenses, 
"        "       "  W.  G.  Candler,    Commissioner, 

Expense  account  from  Nov.  14,  1871,  to  Oct.  1st,  1872, 
R.  W.  Pulliam,  expense  to  New  York, 

$88,340  73 
On  hand  October  1st,  1872,  11,219  26 

This  does  not  include  the  cost  of  the  Brooklyn  suit  and  other  expenses  paid 
"by  our  Bankers. 

Respectfully  submitted, 

W.    W.  Rollins, 

Treasurer  of  Commission.  . 

At  Fall  Term,  1872,  of  the  Superior  Court  of  Buncombe  county, 
the  following  order  was  made  by  the  Court,  to  wit  : 

M.  T abler,  ) 

VS.  > 

The  Western  Division  of  the  W.  N.  C.  R.  R.  Co.,    et  al. ) 

It  appearing  by  affidavits  filed  by  defendants  that  they  cannot  obtain  justice  <toSpo^k"coIed 
in  any  of  the  counties  of  the  12th  Judicial  District.  It  is  ordered  by  the  Court 
with  the  consent  of  the  parties  that  this  case  be  transferred  to  the  county  of 
P.  Ik  in  the  10th  Judicial  District  to  be  tried,  and  that  the  Clerk  of  this  Court 
make  a  full,  true  and  perfect  transcript  of  the  record  of  the  proceedings  hereto- 
before  had  therein,  and  transfer  the  same  under  the  seal  of  this  Court  to  Polk 
county  on  or  before  the  next  Term  thereof. 

(Signed.)        J.  L.  Heney,  Judge,  &c. 

The  above  order  applies  to  this  and  three  other  cases  against  the  said  defend- 
ants, one  in  favor  of  M.  J.  Fagg  &  Co.,  one  in  favor  of  E.  Clayton,  and  one  in 
favor  of  Martin  Shea. 

On  the  26th  day  of  April,  1873,  the  following  transcript  of  the 
record  of  the  proceedings  in  this  cause  in  Polk  county  was  sent  to 
this    Court    by    the    Clerk    of  the  Superior  Court  of  Polk  county  Transcript  fm 

,        ,  .        rt»    ■    1  1    ,  •.  Polk  to   Bun- 

under  his  official  seal,  to  wit  :  combe. 

State  of  North  Carolina,) 
Polk  County.) 

Second  Monday  in  March,  A.  D.  1873,  it  being  the  10th  day  of  March  in  said 
year.  Be  it  known  that  a  Superior  Court  was  this  day  opened  and  held  for  said 
county  of  Polk  at  the  Court  House  in  Columbus  2nd  Monday  in  March,    A.  D. 

1873,  Hon.  G.  W.  Logan,   Judge  present,    and  presiding  when  the  following 
proceedings  were  had,  to  wit : 


('92) 

N°TolkCACEo°u^:}  spring  Term,1873. 

M.  J.  Fagg  &  Co., 

VS. 
The  Western  Division  of  the  W.  N.  C.  R.  R.  Co.,  et  al. 

The  Clerk  will  enter  these  cases  on  his  Docket,  and  the  award  of  the  referees 
in  each  case,  and  also  enter  that  the  cases  will  be  heard  at  Rutherfordton  on 
Monday  the  17th  instant,  on  a  motion  by  plaintiff's  attorney  for  judgment  ac- 
cording to  award  of  referees;  also  enter  the  agreement  signed  by  Attorneys 
Erwin,  Bynum  and  Vance.  G.  W.  Logan,  J.  S.  C. 

v.  12  March,  1873. 

North  Carolina,  \ 

Polk  County. f 

M.J.  Fagg  &  Co.,  1 

The  Western   Division   of  the  W.    N.  C.    R.  R.  { 
Company,  et  al.  J 

.Agreement  to 
refer.  In  this  case  it  is  agreed  by  plaintiff  and  defendant  to  refer  the  matter  in  dispute 

to  J.  G.  Martin,  W.  D.  Rankin  and  Thaddeus  Coleman,  to  ascertain  and  re- 
port Avhat  is  due  to  the  plaintiff,  it  anything,  from  the  defendants  and  their 
award,  or  a  majority  of  them,  to  be  a  rule  of  Court  and  judgment  final,  to  be 
entered  thereon.  It  is  further  agreed,  that  all  objections  to  the  form  of  the  ac- 
tions and  the  parties  thereto,  are  waived,  and  judgment  for  any  sum  ascertained 
to  be  due  the  plaintiffs,  if  any,  shall  be  rendered  against  the  said  Railroad  Com- 
pany, and  not  commissioners  sued  as  co-defendants.  This  agreement  applies 
to  the  suits  pending  in  the  same  Court,  Martin  Shea,  E.  Clayton  and  M.  J. 
Fagg  &  Co.,  respectively,  against  said  defendants,  being  three  suits. 

Marcus  Erwin,  Bynum,  \  Z.  B.  Vance, 

for  Defendants.)  Attorney  for  Plaintiff. 

It  is  accordingly  so  ordered.  The  above  entry  is  made  as  of  the 
6th  of  December,    1872. 

Superior   Court  ;  / 

Polk  County. ) 

M.  J.  Fagg  &  Co.,  1 

The    Western    Division   of  the    W.  N.    C.  R.  R.  |  Report  of  Referees. 
Company,  et  al.  J 

By  an  agreement  of  attorneys  dated  Dec.  6th,  1S72,  this  action  was  referred 
to  J.  G.  Martin,  Win.  D.  Rankin  and  Thaddeus  Coleman  to  ascertain  and  re- 
port what  is  due  to  the  plaintiff,  if  anything,  from  the  defendant.  This  case, 
end  the  others  referred  to  in  the  same  paper,  were  brought  to  trial  before  a\\ 
the  referees  from  the  12th  of  February,  1S73,  to  the  19th  of  the  same  month,  in 
Asheville,  counsel  for  both  parties  attending  and  evidence  received.  On  the 
20th  of  Februarv  the  referees  met  for  consultation   as  to  the  general  rules  that 


( m ) 

should  control  them  in  making  their  award,  and  all  finally  agreed,  but  no  case 
was  taken  up.  They  adjourned  to  meet  on  the  25th  of  February,  1873,  then  to 
take  up  and  report  on  each  case.  Before  that  day  Mr.  Rankin  was  so  serious- 
ly injured  as  to  be  totally  unable  to  meet  the  other  referees.  Under  these  cir- 
cumstances, the  undersigned  having  regard  to  the  words  of  agreement  to  refer, 
met  on  the  6th,  7th  and  Sth  of  March,  1S73,  and  took  up  each  case  and  exam- 
ined it. 

j  n  this  case  we  find  there  is  due,  from  the  defendants  to  the  plaintiff,  the  sum 
of  sixteen  hundred  and  seventy-three  dollars  and  thirty-five  cents,  ($1,673.35,) 
with  interest  thereon  from  July  10th,  1872. 

J.  G.  Martin, 
T.  Coleman, 

Referees. 

Superior   Court;  I 

Polk  County.) 

M.  J.  Fagg  &  Co.,  1 

vs.  I 

The  Western  Division  of  the  W.    N.  C.    R.  R.  [ 

Company,  j 

By  consent  of  parties  this  action  is  ordered  to  be  transferred  to  the  county  of 
Buncombe,  to  be  docketed  in  said  county  of  Buncombe,  in  the  Superior  Court, 
at  its  Spring  Term,  1873. 

The  case  of  Ephraim  Clayton  and  the  same  defendants,  M.  J.  Fagg  &  Co., 
and  the  same  defendants,  and  Martin  Shea,  and  the  same  defendants,  will  be 
likewise  transferred  to  the  county  of  Buncombe. 

G.  W.  Logan, 
J.  S.  C,  9th  District. 
10th  April,  1873. 

State  of  North  Carolina,  | 

Polk  County. f 

I,  R.  S.  Abrams,  Clerk  Superior  Court  for  Polk  County,  do  hereby  certify 
that  the  foregoing  proceedings  is  a  true  copy  of  the  case  to  which  it  refers.  In 
testimony  whereof  I  have  hereunto  set  my  hand  and  seal  of  office,  at  Columbus, 
this  the  26th  of  April,  1873. 

[Seal.]  R.  S.  Abrams, 

Cl'k  Sup'r  Court  for  Polk  County. 

At  Spring  Term,  1S73,  of  the  Superior  Court  of  Buncombe 
county,  the  following  judgment  was  rendered  in  this  cause,  to- 
wit  : 

Superior  Court,  )    Spring  Term,  1873. 

Buncombe   County. f 

M.  J.  Fagg  and  W.  R.  Ray,   partners  under  the  firm-]  Judgment 

name  of  M.  J.  Fagg  &    Co., 
vs. 

The  Western  Division  of  the  Western  North  Caroli- 
na Railroad  Company. 


(l9A) 

At  a  Superior  Court  held  at  the  Court  House  in  Asheville,  on  the  21st  day 
April,  1873.  Present,  Honorable  J.  L.  Henry,  Judge  of  the  Eleventh  District. 
This  action  having  been  brought  to  a  trial  by  the  Court,  a  trial  by  Jury  having 
been  waived,  and  a  decision  therein  rendered  for  the  plaintiffs,  it  is  now,  on  mo- 
tion of  Z.  B.  Vance  and  J.  H.  Merrimon,  counsel  for  the  plaintiffs,  M.  J.  Fagg 
and  W.  R.  Ray,  adjudged  that  the  plaintiffs  recover  of  the  defendant  sixteen 
hundred  and  seventy-three  dollars  and  thirty-five  cents,  ($1,673.35,)  °f  which 
sixteen  hundred  and  seventy-three  dollars  and  thirty-five  cents  ($1,673.35)  *s 
principal,  and  bears  interest  from  July  10th,  1872,  and  costs  of  action,  to  be 
taxed  by  the  clerk,  with  interest  on  said  principal  till  paid. 

(e  J.  L.  Henry, 

Judge  nth  Judicial  District. 

Transcripts  of  this  judgment,  and  executions  thereon,  were  is- 
sued to  Haywood  and  Madison,  and  execution  to  Buncombe,  on 
the  nth  day  of  November,  1873. 

Transcript  and  execution  to  Jackson,  Nov.  13th,  1873. 

Executions  to  Haywood,  Jackson,  Madison  and  Buncombe,  May 
23d.  1S74. 

The  executions  to  Madison,  Haywood  and  Buncombe,  were 
levied  on  the  property  of  the  defendants,  and  returned  as  follows, 
to-wit  : 

Execution  to  Madison  : 

January  30th,  1874. 
I  this  day  levy  this  execution  on  the   Railroad    and    bed,  and   right   of  way, 
cro  s-ties,  and  all  things  pertaining  to  said  Road,  and  shall  offer  for  sale,  at  the 
Court  House  door  in  Marshall,  the  1st  Saturday  in  March   next.     Date  above. 

March  7th,  1874. 
This  day  offered  sale  of  the  above,  and  postponed  until  the  first    Saturday  in 
May.  A.  G.  Tweed, 

Sheriff. 

Returned  by  order  of  the  plaintiffs'  counsel.     My  fee  $1.10. 

A.  G.  Tweed,  Sheriff. 

Execution  to  Haywood  returned  by  order  of  the  Court. 

S.  J.  Shelton, 
Sheriff  of  Haywood  County. 

August  3rd,  1874. 
Suspended  by  order  of  plaintiffs'  att'y,  J.  H.  Merrimon. 

S.  J.  Shelton,  Sh'ff. 

Levy  on  Bun-      I  hereby  levy  this  execution  on  the  franchise,  road-bed,  right   of  way,  and  all 
property  attached  to  the   franchise  of  the  W    t    _i  Division  Wee      n 


Return  of  sale. 


(  195  ) 

North  Carolina  Railroad  Company,  and  also  on  a  lot  of  land  of  said  Company, 
situated  in  the  town  of  Asheville,  whereon  the  Post  Office  is  now  located,  ad- 
joining lands  of  E.  T.  Clemmons  and  others,  to  satisfy  this  execution,  and  one 
in  favor  of  E.  Clayton,  and  one  other  in  favor  of  Martin  Shea,  and  one  other 
in  favor  of  M.  Tabler.  The  levies  on  the  three  last  named  executions  are 
hereby  referred  to.  This,  2nd  day  of  June, 
1S74.  J.  M.  Young,  Sheriff. 

The  above  property  was  sold  as  follows  : 

The  lot  of  land  was  put  up  and  sold  for  five  hundred  and  fifty  dollars.  The 
road-bed  was  then  sold  for  one  thousand  dollars,  and  the  franchise,  and  other 
property,  was  sold  together  for  the  balance  of  this  execution;  and  one  in  favor 
of  E.  Clayton,  one  in  .favor  of  M.  Tabler,  and  one  in  favor  of  Martin  Shea,  and 
all  cost.     This,  nth  day  of  July,  1S74.  J-  M.  Young. 

Sheriff. 

I  this  day  after  due  advertisement,  sold  the  property  levided  on  under  this 
execution  at  public  auction  at  the  Court  House  door  in  the  town  of  Asheville  to 
E.  Clayton,  M.  Tabler,  Martin  Shea,  M.  J.  Fagg  and  W.  R.  Ray,  who  were  the 
highest  bidders  for  the  sum  of  $1,229.69,  being  the  full  amount  uf  principal,  in- 
terest and  all  cost  due  on  this  execution,  and  one  in  favor  of  E.  Clayton,  one  in  Another  ret'rn 
favor  of  M.  Tabler,  and  one  in  favor  of  Martin  Shea,  see  plaintiff's  receipt  for  of  sale. 
$1,874.15.  I  retain  my  fees  and  commission,  and  pay  into  office  $56.00.  The 
sale  of  the  property  was  made  on  this  execution,  and  the  other  three  executions 
named  in  this  return,  and  the  proceeds  of  sale  satisfied  them  all  in  full  of  prin- 
cipal, interest  and  all  cost.  The  purchasers  bid  for  the  franchise  of  said  railroad 
company  for  the  entire  period  of  its  existence,  paying  therefor,  together  with 
the  other  property  levied  on  the  full  amount  of  all  the  judgments  on  which  it 
was  sold,  and  all  cost.     This  July  11th,  1874.  J.  M.  Young,  Sheriff. 

This  judgment  is  registered  on  the  Judgment  Docket  as  follows, 

to  wit  : 

Received  eighteen  hundred  and  seventy-four  dollars  and  fifteen   cents  in  full  r   . 

Judgment   re- 
of  this  judgment.     July  11th,  1874.  M.  J.    Fagg  &  Co.  ceipted. 

By  M.  J.  Fagg. 
Know  all  men  by  these  presents    that    whereas    at  the  Spring  Term,  A.  D., 
1873,  of  the  Superior  Court  of  Buncombe  county,  and  the  State  of  North  Caro- 
lina, E.  Clayton  recovered  judgment  against  the  Western  Division  of  the   Wes.  Sheriffs  deed 
tern  North  Carolina  Railroad  company  for  the  sum  of  four  thousand  seven  hun-   a°d  '0thersfS 
dred  and  fifty-one  dollars  and  ehdUy  cents  ($4,751.80,)  with  interest  on  said  sum 
from  the  10th  day  of  July,  A.  D.,  1872,    and  for  fifty-eight  dollars  and  forty 
cents  cost,  and  M.  J.  Fagg  &  Co.  recovered  judgment  against  said  railroad  com- 
pany for  one  thousand  six  hundred  and  seventy-three  dollars  and  thirty-five 
c  .1  s,    it    interest  on  said  sum  from  the  18th  day  of  July,  1872,  and  for  $58.43^ 
costs;  and  Martin  bhea,  recovered  judgment  against  said  railroad  company  for 
the  sum  of  one  thousand  three  hundred  and  forty-three  dellars  and  eighty-six 
cents,  with  interest  on  said  sum  from  the  9th  day  of  July,  A.  D.,  1872,  and  for 


(i96) 

$58.40  costs,  upon  which  judgments,  executions  issued  from  the  said  Court  on 
the  23rd  day  of  May,  1874,  directed  to  me  as  Sheriff  of  said  county,  and  where- 
as, by  virtue  of  said  writs  of  executions,  and  in  order  to  satisfy  the  same,  I  did 
afterwards,  to  wit:  on  the  2nd  day  of  June,  A.  D.,  1874,  levy  on  the  right, 
title,  and  interest  of  the  said  Western  Division  of  the  Western  North  Carolina 
Railroad  company,  on  its  franchise,  road-bed,  right  of  way,  and  all  the  property 
attached  to  its  said  franchise,  and  also  one  lot  of  land  situate  in  the  town  of 
Asheville  whereon  the  post  office  buildingis  now  located,  adjoining  lands  of  E.  T. 
Clemmony,  and  others,  and  whereas,  afterwards,  to  wit :  on  the  6th  day  of  July 
A.  D.,  1874,  by  virtue  of  said  writs  of  executions,  having  duly  advertised  the 
premises  according  to  law,  I  offered  the  aforesaid  property  for  sale  at  public 
auction  at  the  Court  House  door  in  Asheville,  and  for  want  of  bidders,  duly  post 
poned  said  sale  from  day  to-day  until  the  11th  day  of  July,  A.  D.,  1874,  on 
which  said  last  named  day  I  sold  the  aforesaid  property  at  public  auction  at  the 
Court  House  door  in  Asheville  to  E.  Clayton,  M.  Tabler,  Martin  Shea,  M.  J. 
Fagg  and  W.  R.  Ray  who  were  the  highest  bidders  and  purchasers  at  said  sale 
for  the  sum  of  twelve  thousand  two  hundred  and  ninety-five  dollars  and  sixty- 
nine  cents  ($12,295.69,)  being  the  full  amount  of  the  said  judgments  hereinbefore 
mentioned,  and  set  forth,  and  all  costs,  which  was  the  highest  sum  then  bid 
therefore,  I,  James  M.  Young,  Sheriff  as  aforesaid  for  and  in  consideration  of 
the  premises  and  for  the  further  consideration  of  the  said  sum  of  twelve  thous, 
and  two  hundred  and  ninety -five  dollars  and  sixty-nine  cents  to  me  in  hand  paid 
by  the  said  E.  Clayton,  M.  Tabler,  Martin  Shea,  M.  J.  Fagg  and  W.  R.  Ray, 
the  receipt  whereof  is  hereby  acknowledged,  have  bargained,  sold  and  conveyed 
and  by  these  presents  do  bargain,  sell  and  convey  unto  the  said  E.  Clayton,  M. 
Tabler,  Martin  Shea,  M.  J.  Fagg,  W.  R.  Ray  and  their  heirs,  successors  and 
assigns  all  the  right,  title,  interest  of  the  said  Western  Division  of  the  Western 
North  Carolina  Railroad  company  in  its  franchise  for  the  Eastern  Division  of  its 
existence,  its  road-bed,  right  of  way  and  all  the  property  attached  to  the  said 
franchise,  with  all  the  immunities  and  privileges  which  by  law  belong  to  said 
corporation,  and  also  the  lot  of  land  hereinbefore  mentioned  belonging  to  said 
corporation  situated  in  the  town  of  Asheville  where  the  post  office  is  now  loca- 
ted adjoining  the  lands  of  E.  T.  Clemmons  and  others.  To  have  and  to  hold 
the  aforesaid  property,  with  all  the  appurtenances  thereunto  belonging  unto  the 
said  E.  Clayton,  M.  Tabler,  Martin  Shea,  M.  J.  Fagg  and  W.  R.  Ray  and  their 
heirs,  successors  and  assigns  to  their  only  use  and  behoof  forever,  and  I,  the 
said  J.  M.  Young,  Sheriff  as  aforesaid,  do  hereby  covenant  to  and  with  the  said 
E.  Clayton,  M.  Tabler,  Martin  Shea,  M.  J.  Fagg  and  W.  R.  Ray,  their  heirs, 
successors  and  assigns  that  I  will  warrant  and  defend  the  title  to  the  aforesaid 
property  in  as  full  and  ample  a  manner  as  I  am  empowered  to  do  by  virtue  of 
my  office. 

In  testimony  whereof,  I,  the  said  J.  M.    Young,  Sheriff  as  aforesaid,  have 
hereunto  set  my  hand  and  seal,  this  the  11th  day  of  July,  A.  D.,  1874. 

J.   M.  Young,     [Seal.] 
Sheriff  Buncombe  County. 

State  of  Noeth  Caeolina,)  t„  .,     T>.„t>„4.„  n . 

Buncombe   County!  \  In  the  Probate  CourL 

Be  it  remembered  that  on  the  day  of  September,   A.  D.,  1874,  before 


(  i97  ) 

the  undersigned  Judge  of  Probate  for  said  county,  personally  came  J.  M.  Young, 
She.  iff  of  said  county,  who  signed  the  foregoing  and  acknowledged  the  due 
execution  thereof  by  him  as  his  act  and  deed.  Therefore  let  the  said  deed  with 
this  certificate  be  registered.  J.  E.  Reed, 

Judge  Probate. 
Received  and  registered  Sept.  30th,  1875,  at  3:40  o'clock  P.  Mjj 

J.  R.  Patterson,     Register. 


August  18th,  1877,  stockholders  of  the  Western  Division  met  pursuant  call  ot 
of  the  President  Rollins.  20,369  shares  of  private  stock,  and  13,578  of  State 
stock  by  Dr.  J.  A.  Reagan,  -'who  held  authority  from  the  Governor  as  State 
proxy,"  represented,  a  quorum.  They  elected  four  Directors  on  the  part  of  the 
stockholders,  viz  :  Thos.  L.  Clayton,  (one  of  the  Trustees,)  James  H.  Rum- 
bough,  C.  M.  McLoud  and  C.  A.  Mcholls.  On  motion  of  M.  J.  Fagg.  it  was 
resolved  that  the  Directors  of  this  company  be  instructed  to  employ  competent 
counsel  to  investigate  the  liabilities  to  the  company  of  George  W.  Swepson  and  resolution.' 
of  any  other  person,  and  to  bring  suits  if  thought  advisable  in  order  to  enforce 
and  secure  the  rights  of  the  company  in  the  premises.  On  motion  of  M.  J. 
Fagg,  it  was  resolved  that  this  meeting  express  thanks  unanimously  to  Major 
Rollins  for  his  untiring  energy  displayed  in  the  prosecution  of  the  suits  in  Florida 
and  elsewhere,  and  the  stockholders  suggest  him  as  President  of  the  company 
in  the  election  of  to-day. 


(198) 


Ns 


(  r99) 


(  300  ) 


THE  A.  T.  DAVIDSON  JUDGMENT.  - 


BUNCOMBE  COUNTY, — J.N  THE  SUPERIOR   COURT. 

A.  T.  Davidson,  ) 

'VS.  -  Summons. 

The  Western  Division  of  the  W.  N.  C.  R.  R.  Company. ) 

'Phe  State  of  North  Carolina, 

To  the  Sheriff  of  Buncombe  County,  — Greeting  : 
You  are  hereby  commanded,  to  summon  the  Western  Division  df  the  Western 
North  Carolina  Railroad  company,  the  defendants  above  named,  if  they  be  found 
within  your  county,  to  be  and  appear  before  the  Judge  of  our  Superior  Court,  to  be 
held  for  the  county  of  Buncombe  at  the  Court  House  in  AshevLle  on  the  4th 
Monday  after  the  4th  Monday  of  April,  1872,  and  answer  the  complaint  which  will 
be  deposited  in  the  office  of  the  Clerk  of  the  Superior  Court  of  said  county  within 
the  first  three  days  of  the  next  term  thereof,  and  Jet  the  said  defendants  take 
notice  that  if  they  fail  to  answer  the  complaint  within  that  time  the  plaintiff 
will  take  judgment  against  them  for  the  sum  of  one  thousand  and  fifty-five 
dollars  and  twenty-eight  cents,  with  interest  on  one  thousand  dollars  from  the 
1st  day  of  May,  1872,  to  the  day  of  payment. 

Herein  fail  not,  and  of  this  summons  make  due  return. 

Given  under  my  hand  and  the  seal  of  said  Court,  this  11th  day  of  April,  1872. 
[Seal.]  (Signed.)        J.  E.  Reed, 

Clerk  of  the  Superior  Court  of  Buncombe  County. 

Which  said  summons  is  endorsed  as  follows  : 
I  accept  service  within  as  Treasurer  W.  D.  W.  N-  C.  R.  R.  Company. 
(Signed.)        G.  M.  Roberts.  Sec.  &  Treas. 

W.  D.  N.  C.  R.  R.  Co.  J 

Superior  Court,  ) 

Buncombe  County. J 

A.  T.  Davidson,  Plaintiff,  ) 

Against  (  r         .   •    . 

The    Western    Division    of  the  W.  N.    C.  R.  R.  f  ^omPiamt- 
Company.  J 

The  plaintiff  alleges  : 

i.  That  the  defendant  is  a  corporation  properly  constituted  by  law,  and  as 
such  may  sue  and  be  sued. 

2.  That  the  defendant  is  justly  due  to  the  plaintiff  the  sum  of  one  thousand 
and  fifty-five  dollars  and  twenty-five  cents,  for  professional    services    as  Attor- 


(SOI) 

ney  of  said  Railroad  Company. 

Therefore,  the  plaintiff  demands  judgment  for  one  thousand  and  fifty-five 
dollars  and  twenty-five  cents,  with  interest  on  one  thousand  dollars  from  the  ist 
day  of  May,  1872. 

(Signed,)       -  J.  H.  Merrimon, 

Pl'ffs'  Attorney. 

County  of  Buncombe  ;         ) 
In  the  Superior  Court. J 

A.  T.  Davidson,  .  1  At  a  Superior  Court  held  at   the   Court 

Against  |  House  in    Asheville,    in    the  county    of 

The  Western  Division  of  the  West-  j-  Buncombe,  on   the    22d    day    of    April, 

ern    North     Carolina    Railroad  |  1872. 

Company.  J 

Present,  Honorable  J.  L.  Henry,  Judge  nth  District.  This  action  having 
been  brought,  and  the  defendant  having  accepted  service  of  the  summons,  and 
a  judgment  therein  rendered  for  the  Plaintiff,  it  is  now,  on. motion  of  J.  H.  Mer- 
rimon, counsel  for  Plaintiff,  A.  T.  Davidson,  adjudged  that  the  Plaintiff  recov- 
er of  the  Defendant,  one  thousand  and  fifty-five  dollars  and  twenty -five  cents, 
of  which  one  thousand  dollars  is  principal,  and  55  dollars  and  twenty-five  cents 
is  interest,  and  costs  of  action  to  be  taxed  by  the  Clerk,  with  interest  on  said 
principal  till  paid. 

(Signed,)  J.  L.  Henry,  Judge,  &c. 

Said  judgment  is  docketed  in  Superior  Court  Clerk's  office,  of 
Buncombe  County,  in  Book  C,  of  Judgments,  page  243. 

Executions  were  issued  to  Buncombe,  Madison  and  Haywood 
counties,  and  transcripts  of  Madison  and  Haywood,  May  22nd, 
1872. 

On  the  execution  to  Haywood  County,  the  following  endorse- 
ments are  made  : 

For  the  want  of  personal  property,  I  have  levied  this  execution  upon  the  real 
property  of  the  defendant  mentioned  within,  situated  in  the  county  of  Haywood, 
along  the  line  of  location,  and  track  and  road-bed,  and  other  lands  adjoining 
the  same,  purchased  or  condemned  to  the  use  of  the  defendants.  I  also  levy 
this  execution  on  the  franchise,  and  all  rights,  privileges  and  property,  there- 
unto, or  in  anywise  thereto  belonging,  or  appertaining  to  t.ie  said  defendant 
corporation.     May  27th,   1872. 

(Signed,)  A.J.Murray, 

Sheriff  of  Haywood  County. 

The  lands  levied  on  were  sold  on  this  and  various  other  Superior  Court  Fi 
fa.,  at  the  Court  House  in  Waynesville,  on  the  6th  day  of  July,  1872,  and  Ed- 
ward F.  Reesser,  Ag't  for  Plaintiff,  was  the  last  and  highest  bidder,  at  $520.00. 
No  money  received  by  me  but  my  fees.  • 

(Signed,)  A.  J.  Murray,  Sh'ff. 


Levy. 


(  202  ) 

An  execution  was  in  the  hands  of  the  Sheriff  of  Buncombe  on 
the  8th  day  of  July,  1872,  when  he  sold,  upon  the  Clayton  execu- 
tion, but  no  levy  or  return  was  endorsed  thereon. 

Another  execution  was  issued  to  Buncombe  County  on  the  3rd 
day  of  Nov.,  1875,  upon  which  the  following  endorsements  are 
made  : 

Seven  hundred  dollars  of  the  within  named  judgment  was  paid  me  by  the 
defendant  not  long  after  the  judgment  was  rendered,  for  which  the  Treasurer 
holds  toy  receipt.     Dec.  6th,  1875. 

(Signed,)  A.  T.  Davidson. 

"I  hereby  levy  this  execution  on  the  franchise,  road-bed  and  right  of  way, 
and  all  property  att-iched,  and  appurtenant  to  the  franchise  of  the  Western 
Division  of  the  Western  North  Carolina  Railroad  company,  and  a^o  on  the  lot 
of  land  belonging  to  said  railroad  company  situated  on  Main  street,  in  the  town 
of  Asheville  in  Buncombe  county,  North  Carolina,  where  the  post  office  is  now 
situated,  and  a  new  building  is  in  process  of  construction,  adjoini  g  lands  of  E. 
T.  Clemmons  and.  others.     This  Nov.  3rd.  1875. 

(Signed.)        J.  M.  Youxg,  Sheriff," 


Sale-  "After  due  advertisement  and  notice  to  defendant  according  to  law,  I  sold  at 

the  Court  House  door  iu  Asheville,  Buncombe  county,  at  public  auction,  to  the 
highest  bidder  for  cash,  ou  Monday  the  6th  clay  of  December,  1875,  the  lot  of 
land  described  in  the  above  levy,  when  Thomas  D.  Carter  became,  and  was  the 
last  and  highest  bidder  at  the  sum  of  fifty  dollars,  and  I  also  sold  the  franchise, 
road-bed.  right  of  way,  superstruction,  and  all  property  attached  and  appurten- 
ant to  the  franchise  of  the  Western  Division  of  the  Western  North  Carolina 
Railroad  company,  and  Thomas  D.  Carter  being  the  last  and  highest  bidder,  he 
bidding  the  full  amount  due  on  said  execution,  and  all  costs,  and  agreeing  to 
take  said  franchise,  &c,  for  the  entire  period  of  the  existence  of  said  franchise, 
was  by  me  declared  the  purchaser,  and  said  Carter  having  complied  with  his 
bid,  I  conveyed  to  him  the  said  franchise  and  property.     This  6th  Dec,  1875. 

(Signed.)        J.  M.  Yorxo,  Sheriff." 

Know  all  men  by  these  presents  that  whereas  at  Spring  Term,    1872,    of  the 

_     ._  ,  Superior  Court  of   Buncombe  county   in   the   State  of  North  C  irolina,  A.  T. 

Sheriff's   deed  _   ■  . ,  ,    .    ,  .     J      ,      __  _.   ,  .  ,A        ' 

toT.D.  Car-  Davidson  recovered   judgment  against   the  western  Division   of  the    \\  estern 

North  Carolina  Railroad  company  for  the  sum   of  one  thousand   and  fifty-five 

dollars  and  twenty-five  cents,  with  interest  on  one   thousand  dollars  from  the 

said  22nd  dav  of  April.  1872,  and  for  cash,    seventeen  dollars   and  fifty  cents, 

and  afterwards  the  said  defendant  paid  seven  hundred  dollars  on  said  judgment: 

upon  which  judgment  a  writ  of  execution   issued  from   said    Court  on  the  3rd 


ter. 


(  2°3  ) 

day  of  November,  1875,  directed  to  me  as  Sheriff  of  said  county,  and  whereas 
by  virtue  of  said  writ  of  execution  and  in  order  to  satisfy  the  same,  I  did  after- 
ward, to  wit :  on  the  3rd  day  of  November,  1875,  levy  on  the  right,  title,  and 
interest  of  the  said  the  Western  Division  of  the  Western  North  Carolina  Rail- 
road company  in  its  franchise,  road-bed,  right  of  way,  and  all  the  property, 
appurtenant  and  attached  to  its  said  franchise,  and  also  one  lot  of  land  situate 
on  Main  street  in  the  town  of  Asheville  in  said  county  of  Buncombe  whereon 
the  post  office  building  is  now  located,  adjoining  lands  of  E.  T.  Clemmons  and 
others,  and  whereas,  afterwards,  to  wit:  on  the  6th  day  of  December,  A.  D., 
1875,  by  virtue  of  said  writ  of  execution,  having  duly  advertised  the  premises 
according  to  law,  I  offered  the  said  property  for  sale  at  public  auction  at  the 
Court  House  door  in  Asheville,  as  follows,  to  wit :  I  first  sold  the  lot  of  land  to 
Thomas  D.  Carter  for  the  sum  of  fifty  dollais,  in  the  said  Thomas  D.  Carter 
being  the  highest  bidder,  and  that  being  the  highest  bid  therefor,  and  the  said 
sum  not  being  sufficient  to  satisfy  the  said  execution  and  costs,  I  immediately 
offered  the  said  franchise,  road-bed,  right  of  way,  and  all  the  property  appurten- 
ant and  attached  to  said  franchise  of  the  Western  Division  of  the  Western  North 
Carolina  Railroad  company  to  the  highest  bidder  for  cash.  I  explained  that  he 
would  be  the  highest  bidder  who  would  satisfy  the  execution  and  ail  costs,  and 
take  said  franchise  for  the  shortest  period  of  time,  and  receive  during  the  time 
all  such  fare  and  tolls  as  the  said  the  Western  Division  of  the  Western  North 
Carolina  Railroad  company  would  by  law  be  entitled  to  demand;  and  I  sold  the 
said  property  to  the  said  Thomas  D.  Carter,  who  bid  the  full  amount  of  said 
execution  and  c^-sts,  and  agreed  to  take  the  said  franchise  for  the  full  period  of 
its  existence,  (no  one  agreeing  to  take  it  for  a  shorter  period  of  time,)  and  receiv- 
ing during  the  time  all  such  fare  and  tolls  as  the  said  the  Western  Division  of 
the  Western  North  Carolina  Railroad  company  would  by  law  be  entitled  to 
demand.  Now,  therefore,  I,  James  M.  Young,  Sheriff  as  aforesaid,  for  and  in 
consideration  of  the  sum  of  three  hundred  and  eighty-eight  dollars  ($388)  in 
hand  paid  by  the  said  Thomas  D.  Carter,  the  receipt  whereof  is  hereby  acknow- 
ledged, the  said  sum  being  the  balance  due  on  said  execution,  including  costs, 
after  deducting  seven  hundred  dollars  as  if  paid  on  22  April,  1872,  and  the  sum 
ol  fifty  dollars  bid  for  said  lot,  have  granted,  bargained,  sold  and  set  over,  and 
conveyed,  and  by  these  presents  I  do  grant,  bargain,  sell,  set  over  and  convey 
unto  the  said  Thomas  D.  Carter,  his  heirs,  successors  and  assigns,  all  the  right, 
title  and  interest  of  the  said  the  Western  Division  of  the  Western  North  Caro- 
lina Railroad  company  in  its  franchise  for  the  entire  period  of  its  existence,  its 
road-bed,  right  of  way,  and  all  the  property  attached  or  appurtenant  to  the  said 
franchise,  with  all  the  immunities  and  privileges  which  by  law  belong  to  the 
said  corporation,  and  in  consideration  of  the  sum  of  fifty  dollars  to  me  paid  by 
the  said  Thomas  D.  Carter,  the  receipt  whereof  is  hereby  acknowledged,  I  hereby 
bargain,  sell  and  convey  to  the  said  Thomas  D.  Carter  and  his  heirs  the  said  lot  of 
land  belonging  to  said  corporation,  situate  on  Mam  street  in  the  town  of  Asheville 
in  Buncombe  county,  North  Carolina,  whereon  the  Post  Office  building  is  now 
located,  adjoining  lanus  of  E.  T.  Clemmons  and  others,  to  have  and  to  hold  the 
aforesaid  property,  the  said  franchise,  for  and  during  the  entire  period  of  its  ex- 


(  204  ) 

istence.  and  the  said  lot  in  fee  simple,  with  all  the  appurtenances  thereunto, 
belong  unto  the  said  Thomas  D.  Carter,  his  heirs,  successors  and  assigns,  to 
his  and  their  only  use  and  behoot  forever.  And  j  ,  the  said  James  M.  Young 
Sheriff,  as  aforesaid,  do  hereby  covenant  to  and  with  the  said  Thomas  D.  Car- 
ter, his  heirs,  successors  and  assigns,  that  I  will  warrant  the  title  to  the  afore- 
said property  in  as  full  and  ample  a  manner,  as  by  virtue  of  my  office  I  am  em- 
powered to  do. 

In  testimony  whereof,  I,  the  said  James  M.  Young,  Sheriff,  as  aforesaid, 
have  hereunto  set  my  hand  and  seal,  this,  the  6th  day  of  December,  1875. 

[Seal.]  J.  M.  Young, 

Sheriff  Buncombe  County. 

North  Carolina,  )   In  the  Probate  Court. 

Buncombe  County.) 

Be  it  remembered,  that  on  this,  the  7th  day  of  December,  1875,  personally 
appeared  before  me,  J.  E.  Reed,  Judge  of  Probate,  in  and  for  the  county  of 
Buncombe  and  State  aforesaid,  James  M.  Young,  Sheriff  of  said  county,  to  me 
known  to  be  the  person  who  executed  the  within  and  foregoing  deed,  and 
acknowledged  the  due  execution  thereof  by  him,  and  for  the  purposes  therein 
contained.     Therefore  let  the  said  deed  with  this  certificate  be  registered.     « 

J.  E.  Reed, 
Judge  Probate. 
Registered  February  3rd,  1S75. 

J.  R.  Patterson,  Register. 


Asheville,  N.  C,  Aug.  14,  '72. 
I  gave  Col  A.  T.  Davidson  a  draft  on  Charlotte,  N.  C.,for  $40.00  ;  Maj.  W. 
\V.  Rollins  rendered  to  G.  M.  Roberts,  Treasurer,  an  account  of  moneys   fur- 
nished to  Col.  A.  T.  Davidson,  with  no  receipt  furnished  to  me  of,  to-wit  : 

$  500  00 
The  above  by  G.  M.  Roberts,  Treas.,  40  00 


$  540  00 

$700.  Ashevilie,  N.  C,  Aug.  14,  '72. 

Rec'd  of  G.  M.  Roberts,  Treasurer  W.  D.  W.  N.  C.  R.  R.  Co.,  seven  hun- 
dred dollars,  part  payment  on  judgment  in  my  favor,  against  said  Company, 
in  Buncombe  Sup'r  Court. 

A.  T.  Davidson. 


(  2°5) 


(206) 


(207) 

RECORD  OF  G.  M.  ROBERTS'  SUIT. 


Buncombe  County  ;  > 

In  the  Superior  Court.) 

G.  M.  Roberts,  1 

n-u     -lit  ^ams  j^.   •  •  c  .,      „,     XT-    (^     -c     D    1*  Summons  for  Relief. 

The  Western   Division    of  the  W.    N.  C.    R.  R. 

Company,  J 

The  State  of  North  Carolina, 

To  the  Sheriff  of  Madison   County — Greeting  : 

You  are  hereby  commanded  to  summon  the  Western  Division  of  the  West- 
ern North  Carolina  Railroad  Company,  the  Defendant  above  named,  if  it  be 
found  within  your  county,  to-be  and  appear  before  the  Judge  of  our  Superior 
Court,  at  a  Court  to  be  held  for  the  county  of  Buncombe,  at  the  Court  House 
in  Asheville,  on  the  2nd  Monday  in  August,  1880,  and  answer  the  complaint 
which  will  be  deposited  in  the  office  of  the  Clerk  of  the  Superior  Court  of  said 
county,  within  the  first  three  days  of  the  next  term  thereof,  and  let  the  said  De- 
fendant take  notice  that  if  it  fail  to  answer  the  said  complaint  within  the  time 
prescribed  by  law  the  Plaintiff  will  apply  to  the  Court  for  the  relief  demanded 
in  t  -ie  complaint. 

Hereof  fail  not,  and  of  this  summons  make  due  return. 

Given  under  my  hand  and  seal  of  said  Court,  this  31st  day    of  March,  1S80. 

[Seal.]  (Signed,)         E.  W.  Herndon. 

Clerk  Sup'r  Court  Buncombe    County. 

Said  summons  endorsed  as  follows  : 

We  acknowledge  ourselves  bound  unto  the  Western  Division  of  the  Western 
North  Carolina  Railroad  Company,  the  Defendant  in  this  action,  in  the  sum  of 
two  hundred  dollars,  to  be  void,  however,  if  the  Plaintiff  shall  pay  to  the  De- 
fendant all  such  costs  as  the  Defendant  may  recover  to  the  Plaintiff  in  this  ac- 
tion. 

Witness  our  hands  and  seals,  this  31st  day  of  March,  A.  D.,  1S80. 

[Seal.]  (Signed,)    G.  M.  Roberts, 

[Seal.]  (Signed,)    M.  J.  Fagg. 

R-eceived  April  1st,  1SS0,  served  April  1st,  1880,  by  reading  contents  of  this 
summons,  to  W.  W.  Rollins,  President  of  the  Western  Division  of  the  West- 
ern North  Carolina  Railroad  Company.  A.  G.  Tweed, 

Sheriff  Madison  County. 

North  Carolina,  \    Superior  Court. 

Buncombe   County.) 

G.  M.  Roberts,  ]  Complaint. 

Against  I 

The    Western    Division  of  the    W.  N.    C.  R.  R.  j 

Company.  J 


(208) 


The  Plaintiff  alleges  : 


i.  That  the  Defendant  was  a  corporation  chartered  by  an  act  of  the  Gene- 
ral Assembly  of  North  Carolina,  entitled,  "An  Act  to  amend  the  charter  of 
the  Western  North  Carolina  Railroad  Company,"  ratified  the  19th  day  of  Au- 
gust, 1868,  and  was  duly  organized  under  said  charter,  and  had  its  principle 
place  of  business,  and  held  its  usual  meetings  in  the  town  of  Asheville,  in  said 
county  of  Buncombe. 

2.  That  by  the  first  section  of  an  act  of  the  General  Assembly  of  said  State 
entitled,  "An  Act  to  repeal  any  and  all  acts  creating,  recognizing,  or  continu- 
ing in  existence,  the  Western  Division  of  the  Wesstern  North  Carolina  Rail- 
road Company,"  it  was  enacted,  the  said  charter  of  the  said  Defendant  corpora- 
tion was  repealed  and  annulled. 

3.  That  the  Plaintiff  is  a  creditor  of  the  said  Defendant  corporation,  and  at 
the  Spring  Term,  1876,  of  the  Superior  Court  for  Buncombe  county,  State 
aforesaid,  he  recovered  judgment  against  said  Railroad  Company,  for  the  sum 
of  four  thousand  and  two  hundred  dollars,  and  costs  of  action,  no  part  of  which 
sum  has  been  paid. 

4.  That,  as  Plaintiff  is  informed  and  believes,  the  property  and  assets  of 
said  corporation  consists  mainly  of  certain  interests  owned  by  it  in  two  Rail- 
road Companies  in  the  State  of  Florida,  which  said  interests  are  now  involved 
in  litigation,  which  may  not  be  determined  for  several  years. 

5.  That  in  order  to  provide  for  a  speedy  and  proper  adjustment  and  settle- 
ment of  the  affairs  of  the  said  amended  corporation,  it  is  necessary  to  have  ap- 
pointed receivers  or  trustees  of  the  same,  to  the  end  that  they  may  be  invested 
with  rights,  power  and  duties  specified  in  the  sixth  Section  of  Chapter  26  of  the 
Revised  Code  of  North  Carolina. 

(Signed,)  H.  A.  Gudger,  Pl'ff's  Att'y 

G.  M.  Roberts  being  duly  sworn  says  :  1  have  heard  read  the  foregoing  com- 
plaint and  know  the  contents  thereof;  the  same  is  true  of  my  own  knowledge, 
except  as  of  matter  therein  stated  on  information  and  belief,  and  as  to  those 
matters  I  believe  it  to  be  true.  (Signed.)        G.  M.  Roberts. 

Sworn  and  subscribed  before  me  this  5th  day  of  April,  1880. 

(Signed.)        E.  W.  Herndon,  Clerk, 
[Seal.]  By  Wm.  R.  Whitson,  D.  C. 

Buncombe  County. 

North  Carolina,  )  Superior  Court. 

Buncombe  County.  >  To  Fall  Term,  1880. 

G.  M.  Roberts, 

VS. 
Answer.  The  Western  Division  of  the  W.  N.  C.  R.  R.  Company. 

The  defendant,  the  Western  Division  of  the  Western  North  Carolina  Railroad 

company  answering  the  complaint  of  the  plaintiff  herein  says  :  — 

1.     That  the  allegations  of  the  first  paragraph  of  the  complaint  are  untrue  in 


(  2G>9  ) 

so  far  as  it  is  therein  al  legedthat  the  defendant  corporation  had  its-existence7  by  vir- 
tue of  the  said  act  of.  August  19,  1868;  but  it  is  true  that  the  defendant  corporation 
was  duly  organized  and  had  its  principal  place  of  business,  and  holds  its  usual  meet- 
ings at  Ashevill«-  ;and  it  Still  maintains  said  organization,  and  has  its  principle 
place,  of  businpjss.abdiholds.  its  .usual  meetings  at  said  town  of  Ashev!ill>,  and  all 
this  under  and  by  virtue  of  its  charter  as  contained  in  an  act  of  the  General  As- 
sembly of  the  said  State  of  North  Carolina,  entitled '-'an -act-to  "incorporate  tlie 
Western  North  Carolina  Railroad  company,?'  ratified  the  15th  day  of  Februsiry, 
1855,  and  the  various  Sets  subsequently  passed  by  Saidi  General  1Asseihb!yv 
amendatory  to  the  said  charter.  .,  '        _    .         .  .   .  T 

2.  That  it  is  true  that  the  said  General  Assenibly  of  the  said  State,  by  the 
act  referred  to  in  the  second  paragraph  of  the  complaint,  undertook  to  repeal 
arid  annull  the  said  charter  Of  the  said  defendant' corporation,  but this  defendant, 
denied  that  the  said  act  had  the  effect  to  repeal  its  said  charter  or  in  any  manner 
abridge,'  destroy  or  annull  its  corporate  rights  or 'power  derived,  under  and,  by  ; 
virtue  of  said  charter,  the  said  act  being  unconstitutional  in  all  its  parts  and 
provisions.  ,    .    ' 

i  3.  The  defendant  admits  that  the  plaintiff  is  a  creditor  of  the  defendant  cor- 
poration for  the  amount  alleged  in  the  3rd  paragraph  of  the  complaint,  and  in; 
manner  and  form  as  therein  alleged.    ..  .. 

1  4.  Defendant  also  admits  the  matter  alleged  in  the  fourth  paragraph  of  ther 
COniplaint  iii  manner arid  form  as  therein,  alleged.  -,,-... 

*f9Pa  The  defendant  further  answering  the  complaint  herein,  and  in  reference 
to' the  matter  alleged  in  the  5th  paragraph  of  tlie  same,  says :  that  while  it  fivers, 
that  its  -said  charter  lias  not  been  repealed,  and  'cannot  by  any' legislation  •  •'■' 
be  repealed 'br;  a1  tm ulled,  yet  nevertheless,  as  the  question  as  to  the 
effect  ;  of  said  act  undertaking  such  repeal  is  still  unsettled,  and  is 
iiivolved  in  difficulty  arid /doubt,  and  may' nott  be  determined  in  a  Court 
of"  last  resort;  for  several  years  to  pome;  the  defendant  corporation  submits,  to 
sucfr  action  as1  tlie  Court  may  see  proper  to  take. with  reference  to  the  appoint- 
ment of  ~a  receiver  or  receivers,  till  such  time  as  the  validity  of  the  said  repealing. 
act  shall  be  properly  and  finally  determined  by  judicial  decision. 

6.  The  defendant  further  answering  says,  that  at  present  it  has  no  assets  or 
monies hi  hand,  and  that  its  only  property  consists  in  its  franchise,  and  the 
interests  it  has1  in 'the  Florida  Railroads  aforesaid;  wiieli  depend  entirely  on  the 
result -of  the  litigation  now  pending  in  reference  to  said  interests.  If  said  litig- 
ation.results -favorable,  then  its  assets  win  be  more  than  one  hundred  thousand 
dollarsybut  if  unfavorably,  the  only  property  left  will  be  its  franchise  and  right 
of  way  as  aforesaid.  '<'    .' > 

■r  u  ■      Q    ■ I  i  J   '■'     \il  iJ   .  ids  Ion  .  - 

Wherefore  defendant  demands  judgment  : 

l.J'TjhatSthe  said  corporation  charter  has  not  been  repealed. 
i^oJ^JP'tfit  ^,£^erJ^J;r^g^i^pefl^^i^4tft€bs^<rf38G4QHodJ^d     iral 

(Signed.)        C.  M.  MoLoot, 
9fli  rii   sni!o'if»0     '  '    "'    '■  •■    '  'Attorney,  for  Defendant. 

rThfiiiforegoingLansweriis  filed  under  and  by  virtue  of  the  authority  of  the  Wes- 


'd  axo'f'soi 


(2IO) 

tern  Division  of  the  Western  North  Ca  oT"r?a  Rai'voad  company,  and  its  assent 
5o  hereto  given  by  the  signature  of  W.  W.  Rollins,  the  President  of  the  said 
company,  and  the  affixiug  of  the  seal  of  said  company. 

(Signed.)        W.  W.  Rollins,  President 
[Seal.]  W.  N.  C.  R.  R.  West.  Div. 

North  Carolina,  )  Superior  Court. 

Buncombe  County.    -  At  Chambers, 
)  April  9th,  1880. 

G.  M.  Roberts,  Plaintiff.  1 

VS.  i 

The  Western  Division  of  the  Western  North  Carolina    | 

Railroad  Company,  Defendant.  J 

Upon  reading  the  complaint  and  answer  in  this  action  and  it  appearing  to  the 
Court  that  the  charter  of  the  defendant  corporation  has  been  repealed;  that  its 
Orde r  appoint-  assets  and  property  consist  mainly  in  certain  interests  in  two  railroad  companies 
'in  the  State  of  Florida,  and  that  said  interests  are  now  in  litigation;  that  in  order 
to  provide  for  a  speedy  and  proper  adjustment  and  settlement  of  said  defendant 
corporation  affairs,  it  is  necessary  to  appoint  receiver  to  take  charge  of  the  same; 
and  it  further  appearing  that  the  plaintiff  is  a  creditor  of  the  defandant  corpora- 
tion; 

It  is  now  on  motion  of  counsel  for  the'plaintiff  ordered,  adjudged  and  decreed 
that  W.  W,  Rollms  and  C.  M.  McLoud  be,  and  they  are  hereby  appointed  Re- 
ceivers of  the  Western  Division  of  the  Western  North  Carolina  Railroad  com- 
pany to  take  charge  of  the  estate  and  effects  thereof,  and  to  collect  tbe  debts 
and  property  due,  and  belonging  to  the  said  corporation,  with  power  to  prosecute 
^"II^otSL^J?"  and  defend  in  the  name  of  said  corporation  or  in  their  own  name  as  Receivers, 
led  Keceiv'rs  all  such  suits  as  may  be  necessary  or  proper  for  the  purposes  aforesaid;  and  to 
appoint  agents  under  them,  and  to  do  all  other  acts,  which  might  be  done  by 
such  corporation,  if  in  being,  that  may  be  necessary  for  the  final  settlement  of 
the  unfinished  business  of  the  corporation.  The  said  receivers  shall  enter  into 
bond  in  the  sum  of  five  thousand  dollars,  payable  to  the  State  of  North  Carolina 
for  the  benefit  of  all  parties  interested. 

(Signed.)        D.  Schenck, 

Judge  presiding. 
We  consent  that  the  above  decree  may  be  made,  April  8th,  1880. 

(Signed.)        J.  H.  Meeeimon,  Plaintiff's  Attorney. 
(Signed.)        C.  M.  McLoud,     Defendant's  Attorney. 
I  ratify  the  consent  given  by  J.  H.  Merrimon  as  Attorney  to   the   above  and 
foregoing  decree  appointing  W.  W.  Rollins  and  C.  M.    McLoud,    Receivers  of 
the  Western  Division  of  the  Western  North  Carolina  Railroad  Company. 
April  10th,  1880.  (Signed,)        G.  M.  Roberts, 

Plaintiff. 

Know  all  men  by  these  presents,  that  we,  W.  W.  Rollins  arid  C.  M.  McLoud 
Receivers'  bV.  ag  prindpal  aud 

as  sureties  are  held  and  firmly  bound  unto  the  State  of  North  Carolina  in  the 
sum  of  five  thousand  dollars  ($5,000)  for  payment  of  which,  well  and  truly  to 


(211   ) 

be  made  and  done,  we  hereby  bind  ourselves,  our  heirs,  executor,  and  administra- 
tors jointly  and  severally  firmly  by  these  presents. '  Given  under  our  bands  and 
seals  tbis  12th  day  of  April,  1880. 

Now  the  condition  of  this  obligation  is  such  that  whenever  the  above  bonded 
W.  W.  Rollins  and  C.  M.  McLoud  by  an  order  of  Court  made  on  the  8th  day  of 
April,  1880,  by  the  Honorable  David  Schenck,  Judge,  in  an  application  before 
said  Judge  pending,  and  in  an  action  in  the  Superior  Court  of  Buncombe 
county,  iri  which  G.  M.  Roberts  is  plaintiff,  and  the  Western  Division  of  tha 
Western  North  Carolina  Railroad  Company,  defendant,  have  been  and  are 
appointed  Receivers  of  the  said  railroad  company  to  take  charge  of  the  estate 
and  effects  thereof  according  to  law; 

Now  if  the  said  Receivers  shall  well  and  truly  perform  and  discharge  all  the 
duLiesby  law  required  of  them  as  such  Receivers,  then  this  obligation  to  be 
void.     Otherwise  to  remain  in  full  force  and  virtue. 

(Signed.)  W.  W.  RoLLip,  [Seal.] 
(Signed.)  C.  M.  McLoud.  [Seal.] 
(Signed.)        R.  W.  Pulliam.     [Seal,] 


(212) 

'■'•"' 

-• 

■ 

•■■... 

'■■'■'  ■     -\  - 

_■•!  ■  )   &dt   ic  ■  ■  •  '  ■'.■•• 

Bifoaif)  bns  ■       .      J  1  . 

biov 
'.'■       .     hloM  .M  .0 


im) 


•  •    :  ]    :,  :n  :n  i  .  ■  i '  da  a3i3.fi    •.  38A0 

■  ■■■■"'        -I   ,.1-tuoO  ioi  i  »cjjj  ;    j  ,av:ijojiaD  mnoYi 

J.^JnuoO  3cTfnoDnu9 

(•,Yfi   qrnoO  b\a  il    cjjO    ..'./'■!  m    I     W:   IT      baoi^B  aaaO 

-  ianij     \ 

(  .BfiHid'ij  .w  .  a 

.nohon  )   oflJ   a    (       ''  -'  too  b  ni  noqu  baofgfi  aexsD 

-'  ■  ■:  i    ?i  -'■'!■!  ,7  »■;..  ;:    •..,   ■■•■  I   :  Y  ,''  ■■   ■-    "'1  jl>  ')i!j  "k>i3VO09T[  o1  8fCl  ififo  1:  i j  i-ilj-slf;  9fIT 

'i         .:'■.      :..,  ;    ...■.■■   ta  ,BJajvi  noo  ,abnod    .■.•■.■■:.•'  .■■■.• ,,".'.'. :.  i  n  ,■■  <food  ,*ii  . 

[J        o    j;    ,abnod    0-   ':         i  viani/i  lo.,a;      rii   "';;'.';  nowus  fgniJaianco  .Jdab 

Ln  n-jO  'xsb'no  abnod  q        ftorn  :t?-'r;  ^nigd  f.ooo.i  ',)    rlofis  ipirilob  bnsa 

,-isdni    .    ■<    ''     '(fib  -.J      '  .     i      raailo  9Jjsb  aril  ,vrtBqrnoO  bco'riijs.H 

;.  lQ    i    IS  '.'/'/.'    Sllj      0   -;'  fJ     iJ3     ■  •'  •  i     '■■■    ,  >  .    vrij   vd   La/i  .■ '•>:..  "1 

.i:  ■_■-:  ut]  i  i  .  i  ':.  n  Li  .  ■/■-'■  '  "'  ■  :  -  :'i  ;  - ;  ''  i(-;/'  riTOisoW  oili  'to 
.ifiijdia  ri3U8  .'i.-:c.;-;  ,amlio.JI  .W  .  V7  ,j'U.L;;uiob  arii  LnA 
:  aJoin  sifj  3T£  ;  ni  wi  ■:■  >'l  ariT 
Juo  gniwoig  Tiiiiibriq  orij  "5o  nubia  briJ  ai  raiovoiinos  alrli  'io  noiifibnuo'i  9riT 
j;:  I  ,v  jSi  •:,.'  ;_  srii  ni  npiaaoa  :  i  to  ivUmsssA  Ifi'ionsO  sril'io  npiJqobfi- srii "io 
-i;  -  io  yifh  if  ,_•  -yyi  ,;  >'  i  j  "io  sloe  tlu '  bhu  yn's  Is;  ■-■  "i  6J  !■>/■■  nA"  (bsfriina  Jib 
uniio  fiO    jUW/1   hio.'&sVV    srii  To    noictviG    naoiasV/    srii   /jj.^ioixy  iii  yiinnij 

.0^8l   ,i!j-,,.;-" .  '.:;   V:";;:  di£l    •:  J !  bsrlbji'l  ".^nnqfnpO  bJEO_lIiBv5 

no   ,.';nilo-ii;0    riiho/i  'io  sJjsJS    srij  'io  tprtiovoO  9fJi  ,1oxj  airiilo  soriJj/JB'iriq  ni 
-sb    doirfv/   ,J^Ji   bijsa   vd  bs'fiiipsa  bnernsb  sdi  abncti  ,^8"]  ,vbM 'io  7_j,Ij>  r'jji  adJ 

.fl.'rv/  ^{qmoo  oi  bsauisi  hinbna'i 
9  [.1    '"iti.'j^no  noiiidai'gsJ    io    iuo  r::-;j;    -r.-.-y  •  - '  klj  I  .  I   ,.:::-i  ■';  arl'i 

brij  'io   ^■loijjbnocriJS    ;;bJ;  IIu  hem  tvru  [j    oC   '    oi '■■■..'[  «niio'f«D  riJioM  rnaiaaW 
.'^nisqmo.D  bifia  'gniJaaTb  paiv/'^t.'is  ni  to  tvnjsqrnoO  bisa'io  iaiT::do 
sq  ajs'w  ,oJ  boTtaiai  svodi;  ,0^81  "io  3d;^  sdi  2  n|i   ..-*  'j-  inrti  fboiiimbjs  ai  il 
Ei  .  H  ri;i!o-u;0  di-joVI  ri-toj^jV/  ad^'io  noi  sivi  I    n    aoV7  &dj  "!o  sa:  n£  rfdgbni  sdJ 
-,     :         j;;i!f    bnB  t3iorn*io  ,a*UjI[ob.  bn'xsaworii  ^i'iii    oi  LjJnuontB  ^n^qfrioO  bisoi  i 
eJ    3    i;  bjj[  1c    nnc")    ?dj   ni  ;  i  ri:  n .'..'  "io  noiiieq  3'g'tal  h  ,3ialadwa  iliJa  iv:;:T!j0jd2b 
buoril'uiSl    finiIoTi>D    d}-to/I    maJasV?    9f!i  ':o  qoiaiviQ  msJaaW  bij;3  9rii  JaniagB 
cth  "io  jfooJa  Isiiqco  9dj  "io  j^djj.ddi  "  :    '   tol  bodhoadua  siiiiS  sdT     .^rrjiqrnoO 
.bJob  x;ioJ/?bn9mB  9dJ  isbnu  inuomB  sirlJ  cj  abnod  b9uaei  bfiB  ,noraiviCI  mgJasW 
arij    To  nciuviQ    msiatrV/  biia'io  aisl  fori;  L-cia  steviitq  srii  Ijsdj  rb5JJimb£  si  Jl 
bica  "io    ifooia  qu    blxsq  "io    ,nwo    ^n^qnioU   bjsoilicil  JinilcniO  rttioVL  niaiaaW 
bnuatrofH  snin-v_j-io'i  icrii  Lnc  (,oco,op_;f.)  taiBlIob  bnBauorii  vjIS  Jnodn  ,vnr»qrnoQ 
-nu3    odi  "io   -ig'larifi'iJ  bar.  olna  r,  y_d  io1  bifiq  gfiw  >fooia  airij'io  (ooo,Q^$5  aTi;II(;b 
.^nsqrnoO  SJfiqmuT  odrxfoontjc-I  odi  vd  bjjo5I  aJiqmuT  adruoo 
:  awollol  s.ri  9t£  sajso  airii  noq;j  iiuoD  arii  ol  boilirndug  anoiiagup  9riT 
q.  Libiv  ,Pf8i  'So   3'rtxiJ  ,o££  laJqi.riD  1q  noilosS  Jain  9rii  ?I     .i 

*?  bifjiv  noiJ398  bncooa  a/li  rI     .£ 
^  Lilxjv  noiioaS  b'ririJ  adJ  gl     .^ 


(2i4) 


CASE  AGREED  AGAINST  W.  W.  ROLLINS. 


North  Carolina.  |    Superior  Court,    Fall  Term,  1S79. 

Buncombe  County. j 

"ase  agreed.     The  Western  North  Carolina  Railroad  Company,  \ 

Against  > 

W.  W.  Rollins.  ) 

Case  agreed  upon  in  a  controversy  without  action. 

The  plaintiff  claims  to  recover  of  the  defendant,  all  the  property,  rights,  cred- 
its, books,  records,  papers,  moneys,  bonds,  contracts,  effects,  and  evidences  of 
debt,  consisting,  among  other  things,  of  ninety-four  (94)  bonds,  of  one  thou- 
sand dollars  each,  ($1,000,)  being  first  mortgage  bonds  of  the  Florida  Oentral 
Railroad  Company,  the  date  of  issue  being  the  day    of  December,    1S76, 

received  by  the  defendant,  in  his  capacity  as  President  of  the  Western  Division 
of  the  Western  North  Carolina  I  ailroad  Company,  and  now  in  his  possession. 
And  the  defendant,  W.  W.  Rollins,  resists  such  claim. 

The  following  are  the  facts  : 

The  foundation  of  this  controversy  is  the  claim  of  the  plaintiff  growing  out 
of  the  adoption  of  the  General  Assembly,  at  its  session  in  the  year  1879,  of  an 
act  entitled,  "An  Act  to  repeal  any  and  all  acts  creating,  recognizing  or  con- 
tinuing in  existence,  the  Western  Division  of  the  Western  North  Carolina 
Railroad  Company,"  ratified  the  13th  day  of  March,  1S79. 

In  pursuance  of  this  act,  the  Governor  of  the  State  of  North  Carolina,  on 
the  15th  day  of  May,  1879,  made  the  demand  required  by  said  act,  which  de- 
fendant refused  to  comply  with. 

The  further  facts  of  this  controversy  arise  out  of  Legislation  creating  the 
Western  North  Carolina  Railroad  Company,  and  all  acts  amendatory  of  the 
charter  of  said  Company,  or  in  auywise  effecting  said  Company. 

It  is  admitted,  that  at  the  time  the  act  of  1S79,  above  referred  to,  was  passed, 
the  indebtedness  of  the  Western  Division  of  the  Western  North  Carolina  Rail- 
re.  d  Company  amounted  to  fifty  thousand  dollars,  or  more,  and  that  said  in- 
debtedness still  subsists,  a  large  portion  of  which  is  in  the  form  of  judgments 
against  the  said  Western  Division  of  the  Western  North  Carolina  Railroad 
Company.  The  State  subscribed  for  $666,666.66%  of  the  capital  stock  of  the 
Western  Division,  and  issued  bonds  to  this  amount  under  the  amendatory  acts. 

It  is  admitted,  that  the  private  stockholders  of  said  Western  Division  of  the 
Western  North  Carolina  Railroad  Company  own,  of  paid  up  stock  of  said 
Company,  about  fifty  thousand  dollars,  ($50,000,)  and  that  forty-nine  thousand 
dollars  ($49,000)  of  this  stock  was  paid  for  by  a  sale  and  transfer  of  the  Bun- 
combe Turnpike  Road  by  the  Buncombe  Turnpike  Company. 

The  questions  submitted  to  the  Court  upon  this  case  are  as  follows  : 

1.  Is  the  first  Secticn  of  Chapter  230,  Laws   of  1879,  valid  ? 

2.  Is  the  second  Section  valid  ? 

3.  Is  the  third  Section  valid  ? 


(2i5) 

If  the  Court  shall  decide  for  the  plaintiff  or  defendant,  as  to  either   of   these 
questions,  judgment  shall  be  pronounced  according   to  law. 

(Signed,)  John  S.  Henderson, 

Attorney  for  the  W.  N.  C.  R.  R.  Co., 
J.  L.  Henry, 
C.  Ms  McLoud, 
J.  H.  Merkimon, 


ot  Counsel  for  Deft. 


Superior  Court,  [ 

Buncombe  County.  | 


Western  North  Carolina  Railroad   Company,  ^ 

vs. 
W.  W.  Rollins. 

W.  W.  Rollins,  the  defendant  in  the  above  entitled  action,  and  John  S.  Hen- 
derson, a  Director  of  the  Plaintiff  Corporation,  and  under  its  direction  prose- 
cuting this  action,  being  duly  severally  sworn,  say,  each  for  himself,  that  the 
controversy  mentioned  in  the  foregoing  case  is  real,  and  the  proceedings  in 
good  faith,  to  determine  the  rights  of  the  parties.     Aug.  20th,  1879. 

(Signed,)  W.W.Rollins, 

John  S.  Henderson. 

Sworn  and  subscribed,  this,  20th  August,  1879. 

E.  W.  Herndon,  C.  S.  C. 

Western  North  Carolina  Railroad  Company. 

vs. 
W.  W.  Rollins. 

This  was  a  controversy  submitted  without  action,  and  heard  before  Graves, 
Judge,  at  Fall  Term,  1879,  Buncombe  Superior  Court. 

His  Honor  filed  a  written  judgment,  which  is  herewith  sent  as  part  of  the 
case. 

The  plaintiff  being  dissatisfied  with  that  portion  of  the  judgment  which  de_ 
clared  the  2d  and  3rd  Sections  of  the  Act  of  1879,  relerred  to  in  the  case  agreed, 
prayed  an  appeal  therefrom,  which  was  allowed  ;  and  the  defendant  being  dis- 
satisfied with  that  portion  of  the  judgment  which  declared  third  Section  of  said 
Act  valid,  likewise  appealed  to  the  Supreme  Court. 

It  was  agreed  that  notice  of  appeal  should  be  waived  by  both  parties,  and 
that  each  party  should  file  bond  on  appeal  in  the  sum  of  thirty  dollars. 

Henderson  and  Davidson,  for  Pl'ff. 

McLoud  and  J.  H.  Merrimon,  for  Defendant. 


(&■! 


OPINION  .OF  THE  SUPREME:  COURT. 
,zoaa3aKaH  .8  stko^  

,.o'J  .JT  ~H    0  M  .77  ■.    .   i    !        naUA 
State  of  Np.RTjt  Carolina  ;  )  January  Term,  1SS0. 

Supreme  Court.) 

The  W,,N;,- C.  R;  R; ;  Cq.,  1  January  Term,  1SS0. 

J"1jY?-toi  banuo'O  la  r 

W.  W.  Rollins.  J  82,  N.  C,  p.  <:2*. 

(  .  '         ' :    1 01     I'l    '• 

Controversy  submitted  without  action  under  section  315  of  the  code,  and 
heard  at  Fall  Term,  1879,  of  Buncombe  Superior  Court,  before  Grazes,  S£.  / 
The  plaintiff  company  claims  fhe  right  to  recover  all  the  property  .of  the 
Western  Division  of  the  Wester^  North  Carolina  Railroad  Gtfrftpany  in  the 
hands  of  the  de/endant  who  was  president  of  said  Western  •  Division,  and  the 
defendant'  resists  the  .same  upon  the  ground  that  the  act  of  assembly  dissolving, 
the "Western  Division  and  transferring  its  property,  to  the  plaintiff,  is  unconsti- 
tutional; and  void. '  Upon  consideration  of  the  question,  His  Honor  was  of 
bpiniofi  with"  defendant",  arid,  the  plaintiff  appealed  from  the   judgment. 

Messr&fiJgg^ft&fMWdecai,  J.    S.    Henderson,    T.  F.  Z?avidsAH'Hi\d     W. 
H.  Ma  lone,  for  lPfeij*$i.T 

Messrs.   J.  H.  Merrimon,  M~ ~ Erxyin  and  C.   M.  AfcLotfd,  for, Defendant. 

Sm3k$CO$!t9aK*3.H  -W  .3 

©pinion  of  the      The  Western  North  Carolina  Railroad  was  incorporated   and    formed  under- 
Supreme  C  t,  I   ."'I'".'!.)-- 'Li.   ..'■..   f-  -    h   ...  -■  .:-.---. 

an  act  of  the  General  Assembly,  ratified  on  the  15th  day  of  February,  .1S55,  to 
construct  and  operate  a  Railroadffrom  the  town  of  Salisbury  "to  -some-  point 
on  the  Frencji  Broad-River,  beyond.  the  Blue  Ridgq,  .and  if-  the  .Legislature 
snaHnereaftef  determine.,  to  such  Loint  as  it. shall  designate  at,  a  future  ses- 
sion." Acts,  1S54,  55  ch.  2^8. :  By  s  uxes^ive. amendments,,  and  after-  surveys, 
the  projected  Road" was  extended  Westward  by  branches,  one  of  which  was,  to, 
terminate  "at  a  point  on  the  line  of  the  Blue  Ridge  Railroad  on- the  Tennessee 
River,  or  on  the  Tennessee  line  at  or.  near,  Ducktoyvn  in  the  county  of  Chero*  ; 
kee"  ,'"cand'  the other,,   'ajor  near  Paint  Rock."     Apts  1S5S,  59  eh-  170, _ 

"py  the  apt  of  August,  1S6S,.  the  contemplated  Road  was.severed  at  the  French 
BroacfTEciver  into  ,ftwb  separate  and  distinct  divisions^"  one  to  be  called  the 
Eastern  Division  and  to  .embrace  the  Road  to  the  east  ;:  the  other,  the  Western 
DrvTsiohVto  embrace, the  dive.rgen.t  lines  to  the  west, of  the^Rj^trr. .  The  proper-  , 
ty.  appropriations  and  subscription  of  stock'  are  left  in  possession  of  t  le  East- 
ern'Division,'  to  be  used  exclusively  in  the  completion  of  -its  part  of  the  divided 
Road,  under  the  management  of  the  existing  board  of  directors,  while  the  West- 
ern Division  is  placed  under  the  direction  of  another  board  of  directors,  consti- 
tuted by  appointments  of  the  State  and  individual  stockholders  in  the  new 
organization  under  the  act,  to  whom  is  entrusted  the  "selection  of  its  own  offi- 
cers and  agents,  a  distinct  treasurer,  and  otherwise  independent  of  the  other  ;" 
and  for  its  construction,  funds  are  to  be  raised  by  stock  subscriptions,  as  in  the 
original  act  of  incorporation,  and  the  aggregate  capital  of  the    Western    North 


(217) 

Carolina  Railroad  Company,  for  the  two  divisions,  is  increased  to   a   sum   not 
exceeding  twelve  millions  of  dollars.     Private  Acts,  1S6S,  ch.  24. 

This  statut  ;  was  renacted  and  confirmed  by  two  subsequent  acts,  one  ratified 
December  18th,  1868,  and  the  other  January  29th,  18G9.  Acts  1868  '69,  chap.  7 
and  20.  repealed  by  Act  of  April  5th,  1871,  Acts  1870-'71,  chap.  249,  and  again 
restored  with  modifications  and  the  repealing  act  itself  r  pealed  by  the  act  of 
February  8th,  1872,  and  power  was  conferred  upon  the  revivi  d  company  "to 
lease  or  sell,  or  otherwise  dispose  of  the  whole  or  any  part  of  said  road  to  any 
person  or  corporation,  on  such  terms  as  may  be  agreed  on"  in  order  to  its  early 
competition;  acts  1871  '72,  cliap.   150. 

On  March  13th,  1879,  was  passed  the  act  whose  validity  is  called  in  question 
in  the  present  suit,  the  first  section  of  which  repeals  the  acts  of  August  19th, 
1868,  of  January  29th,  1869,  and  of  February  8th,  1872,  by  special  mention, 
"and  any  and  all  other  acts  and  parts  of  acts,  creating,  recognizing,  or  continu- 
i  g  in  existence  the  Western  Division  of  the  Western  North  Carolina  Railroad 
Company." 

The  second  section  is  in  these  words  :  -'That  all  the  properly,  rights,  credits* 
rights  of  action  and  effects  that  now  exist  in  favor  of  the  said  Western  Division' 
of  the  Western  North  Carolina  Railroad  company,  or  which  may  result  from 
auy  existing  matters,  causes,  circumstances  or  contingencies  shall  become  abso- 
lutley  the  rights  and  property  of  the  Western  North  Carolina  Railroad  company; 
and  the  said  Western  North  Carolina  Railroad  company  is  hereby  authorized 
and  empowered  to  prosecute,  defend  and  manage  any  and  all  suits,  and  actions 
pending  in  the  Courts  of  this  State  in  the  Courts  of  the  United  States  or  the 
Courts  of  any  other  State  or  Territory,  in  reference  to  the  property,  rights  and 
credits  of  the  said  Western  Division  of  the  Western  North  Carolina  Railroad 
company;  provided  the  said  Western  North  Carolina  R  lilroad  company  shall 
not  be  liable  or  responsible  for  any  debt,  contract,  obligation  or  other  liability  of 
the  said  Western  Division  of  the  Western  North  Carolina  Railroad  company, 
beyond  the  sum  it  shall  actual1.}'  realize  and  receive  from  the  transfer  of  property 
rights,  credits,  &c,  provided  for  in  this  section. 

The  third  section  requires  officers,  directors  and  agents  of  the  dissolved  com- 
pany, within  thirty  days  after  demand  of  the  Governor,  to  surrender  to  the  B.~ 
rectors  of  the  Western  North  Carolina  Railroad  company  "all  books,  records, 
papers,  moneys,  bonds,  property,  contracts,  effects  and  evidences  of  debt"  in 
their  possession,  or  under  "their  control,  and  makes  their  failure  or  refusal  a  mis- 
demeanor, punishable  by  fine  or  imprisonment. 

The  defendant,  who  was,  at  the  time  of  the  passing  of  the  act,  president  of 
the  annulled  company,  has  in  his  hands  ninety-four  first  mortgage  bonds,  of  one 
thousand  dollars  each,  of  the  Florida  Central  railroad  company,  which  with 
other  of  its  effects  are  sought  to  be  recovered  in  this  action.  The  claim  is  resis- 
t  d  on  the  ground  of  the  unconstitutionality  of  the  act,  and  for  the  further  fact 
disclosed  in  the  case  agreed,  that  there  are  outstanding  debts  of  the  company, 
most  of  them  reduced  to  judgments,  fifty  thousand  dollars  or  more  in  amount, 
which  the  defendant  alleges  attach  as  a  trust  to  the  funds  he  holds,  and  must  be 
paid  therefrom.     The  State  subscribed  six  and  two  third  millions  to  the  capital 


(2lS) 

stock  of  the  Western  Division.  and  bonds  were  issued  therefor,  while  private 
stockholders  own  of  paid-up  stock  fifty  thousand  dollars,  whereof  all  expect  one 
thousand  dollars  was  paid  by  a  sale  and  transfer  of  the  property  of  the  Buncombe 
Turnpike  company.  Upon  this  statement  of  facts  two  questions  only  are  pres- 
ented for  determination. 

1.  Has  the  general  assembly  the  power  to  destroy  by  a  mere  enactment  the 
existence  of  the  organization  designated  the  "Western  Division  of  the  North 
Carolina  railroad  companj'"  ?  and  if  it  has, 

2.  Can  it  transfer  and  vest  the  property  of  +he  annulled  company  in  a  new 
corporation,  bearing  the  name,  but  not  being  in  fact  the  same,  as  that  formed 
undep  the  act  of  1855,  so  as  to  entitle  the  plaintiff  to  sue  and  recover  ? 

The  solution  of  these  enquiries  disposes  of  the  two  appeals. 

First — As  to  the  repealing  power  exercised  in  the  first  section  and  its  effect : 
The  constitution  of  1868  contains  this  provision,  viz:  "Corporations  maybe 
formed  under  general  laws,  but  shall  not  be  created  by  special  act,  except  for 
municipal  purposes  and  in  cases  where,  in  the  judgment  of  the  legislature,  the 
object  of  the  corporation  cannot  be  attained  under  general  laws.  All  general 
laws  and  special  acts,  passed  pursuant  to  this  section,  may  be  altered  from  time 
to  time  or  repealed.  Art.  VIII.  §  1.  And  the  term  "corporation,"  as  used  in 
the  article,  is  defined  in  section  three,  "to  include  all  associations  and  joint  stock 
companies  having  any  of  the  powers  and  privileges  of  corporations,  not  possess- 
ed by  individuals  or  partnerships." 

Invested  with  the  attributes  conferred  by  the  various  enactments  which  form 
and  shape  the  Western  Division,  as  a  separate  and  distinct  organic  body,  with 
capacity  to  contract  debts,  to  sue  and  be  sued,  to  mortgage  the  road  to  secure 
borrowed  money,  to  lease  and  sell  it,  to  appoint  its  own  officers  and  agents  and 
manage  its  own  affairs,  (with*  a  succession  which  preserves  its  own  integrity 
amidst  changes  among  its  members)  if  the  possession  of  these  facilities  do  not 
constitute  a  corporation,  it  will  be  difficult  to  point  out  :.ny  absent  that  would 
have  the  effect,  within  the  purview  of  the  constitution.  But  it  is  not  material 
to  solve  the  question,  so  earnestly  and  elaborately  pressed  in  the  argument, 
whether  the  Western  Division  by  the  effect  of  the  legislation  became  and  was  a 
corporate  body  itself,  or  an  agency  and  branch  only  of  the  original  Western 
North  Carolina  railroad  company,  since  in  cither  case  the  effect  of  the  legislation 
is  the  same.  If  it  was  but  an  agency,  the  same  efficient  power  that  created 
could  destroy  and  again  restore  to  life,  as  was  done  by  antecedent  acts.  If  it 
was  a  corporate  body,  it  was  formed  under  the  controlling  force  of  the  constitu- 
tion, and  remained  subject  to  the  repealing  power  of  the  general  assembly. 

The  case  mainly  relied  on  in  opposition  to  the  power  to  dissolve  is  that  of 
New  Jersey  v.  2'ard,  95  U.  S.,  104.  with  a  brief  review  of  which  we  will  be 
content.  In  1835,  the  Morris  and  Essex  railroad  company  was  chartered.  In 
March,  1865,  an  amendment  was  made  authorizing  the  construction  of  a  branch 
road.  Two  years  later  another  amendment  was  added.  In  1846  the  legislature 
enacted  "that  the  charter  of  any  corporation  which  should  thereafter  be  granted 
by  the  legislature  should  be  subject  to  alteration,  suspension  and  repeal  in  the 


(2I9) 

discretion  of  the  legislature."  In  March,  1863,  an  act  was  passed  for  the  assess- 
ment and  taxation  of  the  full  amount  of  the  capital  stock  of  corporations,  paid 
in  and  its  accumulation,  and  the  right  to  pass  and  enforce  this  enactment  was 
the  point  before  the  Court.  Mr.  Justice  Miller,  speaking  for  the  Court,  uses 
this  language  :  "The  case  before  us  differs  from  those  iu  which,  by  the  con- 
stitution of  some  of  the  States,  this  right  to  alter,  amend  and  repeal  all  laws 
creating  corporate  privileges  becomes  an  inalienable  legislative  power.  The 
power  thus  conferred  cannot  be  limited  or  bargained  away  by  any  act  of  the 
legislature,  because  the  power  itself  is  beyond  legislative  control.  The  right  iu 
this  case  to  amend  or  repeal  legislative  grants  to  corporations,  being  itself  but 
the  expression  of  the  will  or  purpose  of  the  legislature  for  one  particular  session 
or  term  of  the  State  of  New  Jerse}r,  cannot  bind  any  succeeding  legislature 
which  may  choose  to  make  a  grant,  or  a  contract  not  subject  to  be  ahered  or 
repealed.  *  *  *  *  It  follows  that  unlike  the  constitutional  provision  in 
other  States,  it  is  in  New  Jersey  a  question  in  every  case  of  a  contract  made  by 
the  legislature,  whether  that  body  intended  that  the  right  to  change  or  repeal  it 
should  inhere  in  it,  or  whether,  like  other  contracts,  it  was  perfect  and  not 
within  the  power  of  the  legislature  to  impair  its  obligation." 

The  reasoning  of  the  Court,  so  far  from  denying  concedes  the  power  to  modify 
or  dissolve  a  corporation,  when  reserved  in  the  fundamental  law  in  force  when 
the  corporation  was  formed,  and  maintains  the  competency  of  the  general  as- 
sembly, notwithstanding  a  previous  general  enactment  of  similar  import  to  enter 
into  an  inviolable  contract,  and  that  whether  this  is  done  in  a  particular  case  is 
a  question  of  construction  and  intent.  Tomlinsdn  v.  Jessup,  15  Wall,  454; 
Ho/yoke  v.  Lyman,  Id.,  500,  Miller  v.  Stale,  Id.,  498. 

Secondly.  As  to  the  assigment  of  the  property  to  the  plaintiff  and  the  right 
of  recovery  from  the  defendant :  The  dissolution  of  the  Western  Division,  as 
an  organized  body,  posssessing  property  and  owing  debts,  renders  necessary  the 
appointment  of  a  suitable  person  to  take  charge  of,  collect  and  apply  its  assets  in 
the  discharge  of  its  liabilities.  When  the  dissolution  is  brought  about  by  a  judg- 
ment of  the  Court,  a  receiver  is  appointed  for  the  purpose,  who  acts  under  its 
supervision  and  control.  When  it  is  the  result  of  a  lawful  act  of  legislation,  it 
is  reasonable  that  the  repealing  act  should  make  provision  for  such  administra- 
tion, and  we  see  no  reason  why  the  plaintiff  should  not  be  thus  appointed  as 
well  as  a  natural  person.  The  transfer  to  the  re-incorporated  Western  North 
Carolina  railroad  company  is  absolute,  it  is  true,  but  (as  we  understand  the 
proviso)  in  full  recognition  of  the  trusts  in  favor  of  creditors  and  their  right  of 
satisfaction  therefrom.  Its  language  clearly  imports  this  in  declaring  that  the 
plaintiff  company  shall  not  be  liable  or  responsible  for  any  debt,  contract,  oblig- 
ation or  other  liability  of  the  said  Western  Division  of  the  Western  North  Caro- 
lina railroad  company,  beyond  the  sum  it  shall  actually  realize  and  receive  from 
the  transfer  of  property,  rights,  credits,"  &c,  a  distinct  implication  of  such 
liability  to  the  extent  Snd  value  of  the  funds  received.  But  in  the  absence  of 
such  provision,  the  trusts  in  favor  of  creditors  and  of  stockholders,  if  there  be 
any  surplus,  would  attach  to  the  transferred  property  and  the  plaintiff  could  be 


(  220  ) 

compelled  to  discharge  the  trusts  therefrom.  The  creditors  as  such,  are  not 
complaining  of  this  portion  of  the  act,  and  so  far  as  we  know  acquiesce  in  the 
transfer.  They  are  not  represented  by  the  contesting  defendant,  nor  is  he  the 
protector  of  their  rights  in  the  premises.  He  can  only  resist  the  legal  operation 
of  the  act  which  takes  from  him  the  possession  of  that  which  he  no  longer  holds 
as  an  officer,  and  places  it  in  other-  hands.  His  objection  lies  solely  to  the 
change  of  trustees,  unaffected  by  inhering  trusts  for  others. 

The  validity  of  the  act  is  fully  sustained  by  the  case  of  Read  v.  Frank-ford 
Batik,  23  Maine,  318.  On  March  29th,  1S41,  the  legislature  passed  an  act  re- 
pealing the  charter  of  the  defendant  and  appointing  receivers  who  were  required 
to  demand  and  receive  from  the  officers,  the  property  of  the  bank  in  their  hands. 
On  April  16th  lollowing,  another  act  was  passed  requiring  creditors  in  order 
to  entitle  them  to  participate  in  the  distribution  of  the  assets  and  prevent  their 
claims  from  being  barred,  to  exhibit  and  prove  them  to  the  receivers  on  or  be- 
fore the  1st  day  of  July  thereafter.  The  repeal  was  by  virtue  of  a  power  re- 
served in  a  general  law  passed  in  183 1.  The  bank  was  incorporated  afterwards 
and  subject  to  its  provisions.  Some  creditors  who  had  previously  attached 
were  the  plaintiffs  in  the  action,  asserting  their  lien.  The  judge  delivering  the 
opinion  of  the  court,  says  :  "The  obligation  of  the  contract  between  the  plain- 
tiffs and  the  bank  was  not  impaired  by  a  repeal  of  its  charter,  but  the  mode  of 
obtaining  indemnity  for  its  violation  was  changed.  The  bank  was  created  by 
the  legislature,  and  by  the  charter  there  was  no  provision  for  the*  prosecution 
of  suits  against  it,  if  that  charter  should  be  declared  by  the  same  power  forfeited 
and  void.  But  a  mode  has  been  provided  in  the  repealing  act,  by  which  credi- 
tors are  enabled  to  obtain  satisfaction  for  their  claims  to  the  extent  of  the  means 
existing  therefor." 

Sustaining  the  validity  of  section  two,  it  is  needless  to  consider  that  which 
follows  and  enforces  compliance  with  appropriate  penalties.  For  the  same  rea- 
sons it  must  also  be  sustained. 

It  is  to  be  observed  that  the  defendant  sustains  towards  the  controversy  the 
relation  of  an  officer  of  an  extinct  organization  and  sets  up  a  defence  not  open 
to  the  debtor,  but  to  the  creditor  only,  who,  as  we  have  before  remarked,  may 
be  content  with  the  legislation  and  substitution  of  the  plaintiff  as  trustee  in  his 
place.  While  it  is  true  that  each  corporator  may  object  to  the  repeal  or  to 
any  material  modirication  of  the  provisions  of  a  charter  granted  for  other  than 
municipal  purposes,  and  constituting  a  legislative  contract  protected  by  the  con 
stitution  of  the  United  States,  yet  in  the  absence  of  complaint,  acquiescence  in 
the  change  may  be  inferred,  and  ultimately  its  acceptance  by  the  corporators. 
Mills  v.   Williams,  n  Ired.,  558  ;   State  v.  Petivdy,  2  Jones  Eq.,  396. 

It  must  therefore  be  declared  that  there  is  error  in  the  ruling  of  the  court  that 
sections  two  and  three  of  the  act  of  March  13th,  1S79,  are  inoperative  and  void; 
and  the  plaintiff's  exceptions  to  the  ruling  are  sustained.  Judgment  must  there- 
fore be  entered  that  the  defendant  deliver  to  the  plaintiff  the  bonds  and  other 
effects  and  property  of  Ihe  Western  Division  of  the  Western  North  Carolina 
Railroad  Company,  as  claimed  in  the  action,  and  it  is  so   Ordered. 

Error.  Reversed. 


( 221 ) 

In  the  same  case  upon  defendant's  appeal  : 

Smith,  C.  J.: 

The  matters  involved  in  this  appeal  are  considered  and  discussed  in  the  opin- 
ion in  the  plaintiff's  appeal,  and  for  the  reasons  therein  stated    it  must   be    de-    Defendant's 
clared  there  is  no  error  in  the  ruling  of  the  court   to  which    the  defendant   ex-    aPPeal- 
cepts.  and  his  exception   is  overruled. 

A  true  copy. 

[Seal.]  Test  :     Wm.  H.  Bagby,  Clerk. 

North  Carolina,  }  January  Term,  1S80. 

Supreme  Court.) 

The  Western  North  Carolina  Railroad  Company, ) 

Against 
W.  W.  Rollins. 


Complaint. 


This  cause  came  on  to  be  argued  upon  the  transcript  of  the  record  from  the 
Superior  Court  of  Buncombe  County,  and  upon  consideration  thereof  this 
Court  is  of  opinion  that  there  is  error  in  the  record  and  proceedings  ot  said 
Superior  Court. 

Therefore  it  is  adjudged  by  the  Court  here  that  the  opinion  of  the  Court,  as 
delivered  by  the  Honorable  W.  N.  H.  Smith,  Chief  Justice,  be  certified  to  the 
said  Superior  Court,  wit.i  a  copy  of  this  judgment,  to  the  end  that  the  proper 
orders  may  be  made  in  said  Superior  Court. 

And  it  is  adjudged  further,  that  the  plaintiff  recover  of'  the  defendant,  and 
that  the  defendant,  the  said  W.  W.  Rollins,  without  delay,  deliver  to  the  plain- 
tiff, the  said  the  Western  North  Carolina  Railroad  Companj',  all  the  property, 
rights,  credits,  books,  records;  papers,  moneys,  effects,  contracts,  evidence  of 
debt  and  bonds,  including  ninetv  four  first  mortgage  bonds  of  the  Florida  Cen- 
tral Railroad  Company,  received  by  him,  the  said  Rollins,  in  his  capacity  as 
President  of  the  Western  Division  of  the  Western  North  Carolina  Railroad 
Company  ; 

It  is  further  adjudged  that  that  plaintiff  recover  of  the  defendant,  the  said 
Rollins,  the  costs  of  the  appeal  tn  this  Court  incurred,  to-wit :  The  sum  of 
fourteen  dollars,  ($14,)  and  let  execution  issue  therefor. 

A  true  copy. 

[Seal.]  Test  :     Wh.  H.  Bagby,  Clerk. 


V 


(  222  ) 


/ 


(223) 


(224) 


EXTRACTS  FROM  CHAPTER  26,  REV.  CODE,  ON 
CORPORATIONS. 


Corpnrat'ns  to  Sec  5.  All  corporations,  whose  charters  shall  expire  by  their  own  limina- 
years  alter  tion,  3r  shall  be  annulled  by  forfeiture  or  otherwise,  shall  nevertheless  be  con- 
p're^etc5  linu 3d  bodies  corporate,  for  the  term  of  three  years  after  the  time  when  they 
would  have  been  so  dissolved,  for  the  purpose  of  prosecuting  and  defending  suits 
by  or  against  them,  and  of  enabling  them  gradually  to  settle  and  close  their  con- 
cerns, to  dispose  of  and  convey  their  property,  and  to  divide  their  capital  stock: 
but  not  for  the  purpose  of  continuing  the  business,  for  which  such  corporations 
may  have  been  established. 

Sec.  6.     When  the  charter  of  any  corporation  shall  expire  or  be  annulled,   as 

provided  in  the  preceding  section,  the  Court  of  Equity  for  the  county   wherein 

When  corpora- shall  have  been  the  usual   meetings   of  the   expired  corporat  on,    or  the   (out 

etc"  r6c  nvers    wnich  s'iau  adjudge  the  forfeiture  of  charter,  on  application  of  any   creditor  of 

or  trustees  to    such  corporation,  or  of  any  stockholder  or  member  thereof,  at  anv  time   within 
be  appointed.    .,         „  .,  .  *.!_-'■ 

the  said  three  years,  may  appoint  one  or  more  persons  to  be  receivers  or  trustees 

of  and  for  such  corporation,  to  take  charge  of  the  estate  and  effects  thereof,  and 

to  collect  the  debts  and  property  due  and  belonging  to  the   corporation;  with 

power  to  prosecute  and  defend,  in  the  name  of  the  corporation,  or  in  the    name 

Their  powerf.  0f  j^  receivers  or  trustees,  all  such  suits  as  may  be  necessary  or  proper  for 
the  purposes  aforesaid;  and  to  appoint  agents  under  them,  and  to  do  all  other 
acts,  which  might  be  done  by  such  corporation,  if  in  being,  that  may  be  necessary 
for  the  final  settlement  of  the  unfinished  business  of  the  corporation;  and  the 
powers  of  such  receivers  may  be  continued  beyond  the  said  three  years,  and  as 

Equity  juris-    long  as  the  Court  shall  think  necessary,  for  the  purposes  aforesaid. 

receiver^or*       ^     ^he  sa^  Court  shall  have  jurisdiction  in  equity  of  such   application,  and 

trustees.  of  all  questions  arising  in  the  proceedings  thereon;  and  make   such   orders,    in- 

junctions, and  decrees  therein,  as  justice  and  equity  shall  require. 

8.  The  said  receivers  shall  pay  all  debts  due  from  the  corporation,  if  the 
Receivers  to  funds  in  their  hands  shall  be  sufficient  therefor;  and  if  not,  they  shall  distribute 
distribute  sur-  the  same  ratably  among  all  the  creditors,  who  shall  prove  their  debts  in  the 
pluSl                manner  that  shall  be  directed  by  any  order  or  decree  of  the  Court  for   that   pur 

pose;  and  if  there  shall  be  any  balance  remaining  after  the  i  ay  nent  of  said 
debts,  the  receivers  shall  distribute  and  pay  the  same  to  and  among  th)33,  wh  > 
shall  be  justly  entitled  thereto,  as  having  been  stockholders  or  members  of  the 
corporation,  or  their  legal  representatives. 

9.  If  any  judgment  or  decree,  at  law  or  in  equity,  shall  be  rendered  against 
a  corporation,  the  plaintiff  may  sue  out  a  distringas  ox  fieri  facias,  as  he  may 
think  proper,  which  may  be  levied,  as  well  on   the  current   money,    as  on  the 


( 225 ) 

goods,  chattels,  lands,  and  tenements  of  such  corporation;  and  if  the  judgment  whatexecut's 

or  decree  be  against  any  railroad  or  other  corporation,  authorized  to  receive  fare  or  to  if5116-  an(i 

3  J  '  what  may  be 

tolls,  the  franchise  of  such  corporation,  with  all  the  rights  and  privileges,  thereof,  sold.— k.  8.  c. 

so  far  as  relates  to  the  receiving  of  fare  or  tolls,  and  aK)  all  other  corporate  pro-      "  S-   " 

pert}-,  real  and  personal,  may  he  taken  on  execution  and  sold   under  the   rules 

regulating  the  sale  of  real  estate. 

10.  In  the  sale  of  the  franchise  of  any   corporation,    the   person,    who  shall  flej>med  ihe 
satisfy  the  execution,  with  all  costs  thereon,    or  who   shall  agree   to   take  such  highest  bid'er 
franchise,  for  the  shortest  period  of  time,  and  to  receive  during  that  time  all  such 

fare  and  toll,  as  the  said  corporation  would  by  law  be  entitled  to  demand,  shall 
be  considered  as  the  highest  bidder. 

11.  The  officer  making  sale  shall  by  deed  convey  to   the  purchaser  all   the  Officer  maki'g 
immunities  and  privileges  which  by  law   belong   to   the  corporation,    so   far  as  nonvey    the 
relates  to  the  right  of  demanding  fare  and  toil:  and  the  officer  shall,  immediately  rig?|  ?,f  fa5f 
after  such  sale,  deuver  to  the  purchaser  possession  of  all  the  corporate  property 
connected  with  the  franchise,  belonging  lo  such  corporation,  in  whatever  county 

the  s-ame  may  be  situated,'  and  the  purchaser  may  thereupon  demand  and  receive, 

to  his  own  use,  a  1  the  fare  and  toll,  which  may  accrue,  within  the  time  limited 

by  the  term  of  his  purchase,  in  the  same  manner  and  under  the  same  regulations, 

as  such  corporation  was  before  authorixed  to  demand  and  receive  the  same. 

13.     Any  person  who  may  have  purchased,  or  shall,  under  the   provisions  of  Purchaser  of  a 
,  .  ,  j.  i  ,      j-         ,  •         j!  mt  1  franchise    to 

this  chapter,  hereafter  purchase  the  franchise  of  any  railroad  or   other  corpora-  have     same 

tion,  and  the  assignee  of  such  person,  may  recover  in  such  action  as  the  corpora-  c^r!w^ationS 

lion  might  have  brought,  any  penalties  imposed  by  law   for  an   injury   to   the  etc. 

franchise  or  for  any  other  cause,  and  which  such  corporation  would   have  been 

entitled  to  recover,  during  the  time  limited  in  the  said  purchase  of  the  franchise; 

and  during  that  time,  the  coiporation  shall  not  be  entitled  to  prosecute  for  such 

penalties. 

13,     The  corporation,  whose  franchise  shall  have  been  sold  as  aforesaid,  shall, 

in  all  other  respects,  retain  the  same  powers  and  be  bound   to  the   discharge  of    ,  ,  , 

-,     •  i  ,.  .  ^  ,  ,  •  ,  ,.     ,.  •  ,    ,. ■  ,    labilities  of 

the  same  duties,  and  liable  to  the  same  penalties;  and  forfeitures,  as  before  such  corporation  to 
_i_  continue  after 


OPINIONS    CONSTRUING     THE     FOREGOING    SEC- 
TIONS. 

Mary  Taylor  v.  Alonzo  T.  Jerkins,  6  Jones,  316. 

A  sale  of  the  franchise  of  a  corporation,  under  the  loth  section  of  the  26th  chapter  of  the 
Revised  Code,  must  be  predicated  on  a  hid  for  the  entire  sum  demanded  S'li  the  execution, 
with  costs,  and  the  only  competition  allowed  by  said  act,  is  ts  to  who  will  take  the  income 


(226) 

for  the  shortest  length  of  time,  paying  the  whole  debt  and  costs,  demanded  in    the   execu- 
tion. 
Where,  therefore,  the  bid  was  for  a  small  fraction  of  the  debt,  though,  for  a  term  far  short 
of  the  limit  of  the  franchise,  it  was  Held  that  the  sheriff  had  no  power  to  convey  the  fran- 
chise to  the  bidder. 

Action  of  assumpsit,  tried  before  Heath,  J.,  at  the  Fall   Term,    iS<;S,   of 
Craven  Superior  Court. 

The  action  was  brought  by  the  plaintift",  to  recover  certain  tolls  for  the  trans- 
portation of  produce  on  the  Neuse  River,  alleging  that  she  had  bought  the  fran- 
chise and  right  of  receiving  toll,  tiat  had  theretofore  belonged  to  the  Neuse 
Rivev,  Navigation  Company,  and  the  only  question  considered  by  this  Court 
was,  whether  she  had  so  purchased  the  right  of  the  corporation.  Upon  that 
point,  the  plaintift"  showed  the  recovery  of  a  judgment  for  $1,616,  in  favor  of  R.  X. 
Taylor,  and  a  writ  of fieri  facias,  commanding  the  sheriff,  that  of  the  goods 
and  chattels,  lands  and  tenements  of  the  Neuse  River  Navigation  Co.,  he  cause  to 
be  made.  Sic.  On  which  writ,  was  endorsed  as  a  return  of  the  said  writ,  by  the 
sheriff,  as  follows:  "Levied,  this  April  39th,  1S56,  on  the  Neuse  River  Naviga- 
tion Company's  right  and  franchise,  h:  and  on  the  River  Neuse,  locks  and 
dams,  and  all  appurtenances  thereu  to  belonging,  or  in  any  wise  appertaining 
to  the  said  company,"  and  further,  was  endorsed  thereon  as  follows:  "Sold  for 
$10."  The  plaintift"  then  offered  in  evidence,  a  deed  from  Norman  Jackson,  the 
sheriff  of  Craven  county,  professing  to  "grant,  bargain,  sell,  alien,  set  over  and 
confirm  to  the  said  Mary  Taylor,  her  executors,  &c,  all  the  said  estate,  right, 
claim  and  franchise  of  the  said  Neuse  River  Navigation  Co.  before  mentioned, 
as  levied  on  and  sold,  with  every  privilege  and  appurtenance,  to  have  and  to 
hold  the  same,  to  the  said  Mary  Taylor,  &c,  for  and  during,  and  until  the  full 
end  and  term  of  eighty-nine  years."  The  extent  of  the  franchise, as  it  appeared 
from  the  charter,  is  perpetual. 

R.  JV.  Taylor,  a  witness  for  the  plaintiff,  stated  that  he  attended  the  sheriff's 
sale  of  the  franchise  in  question,  and  as  the  agent  for  his  mother,  bid  it  off  for 
$10,  to  have  it  for  eighty-nine  years,  and  that  was  the  lowest  bid,  as  to  time,  for 
which  the  franchise  would  be  taken. 

Among  various  other  objections  to  the  plaintiff's  right  to  recover,  the  follow- 
ing is  only  deemed  to  be  material  :  "5th.  That  the  plaintift"  never  purchased 
the  franchise  of  the  Neuse  River  Navigation  Company,  or  bid  the  same  oft"  bv 
herself  or  agent  ;  that  she  never  satisfied  the  execution,  or  took  the  said  fran- 
chise for  the  shortest  period  of  time  to  receive  such  tolls  and  fare  as  the  said 
company  would,  by  law.  be  entitled  to  demand,  and  was  not  the  highest  bidder 
for  the  same." 

The  Court  being  of  opinion  that  the  plaintiff  was  not  entitled  to  recover,  or- 
dered a  nonsuit,  from  which  she  appealed. 

Haughton,  McRae  and  E.  G.  Haywood  for  plaintiff. 

Badger,  J.   W .  Br  van,  Stephenson,  Donnell  and  Greene  for  defendant. 

Battle,  J.  Upon  the  trial,  the  right  of  the  plaintift*  to  recover  was  resisted, 
upon  many  grounds,  one  of  which,  is  so  clearly  fatal  to  the  action,  that  we  have 


(  227  ) 

deemed  it  unnecessary,  if  not  improper,  to  consider  any  other.  The  5th  of  the 
defendant's  grounds  of  objection  is  thus  stated  :  "That  the  plaintiff  never  pur- 
chased the  franchise  of  the  Neuse  River  Navigation  Company,  or  bid  the  same 
off  by  herself  or  agent  ;  that  she  never  satisfied  the  execution,  or  took  the  said 
franchise  for  the  shortest  period  of  time,  and  to  receive  such  tolls  and  fare  as 
the  said  company  would,  by  law,  be  entitled  to  demand,  and  was  not  the  high- 
est bidder  for  the  same."  In  order  to  understand  the  force  of  this  objection,  it 
is  necessary  to  premise,  thatprior  to  the  enactment  of  the  Revised  Code,  the  fran- 
chise ot  a  corporation,  such  as  that  of  a  railroad,  or  navigation  company,  could 
not  be  levied  upon  and  sold  under  a  writ  of  ftera  facias,  or  any  other  writ  of 
execution,  known  either  to  our  common,  or  statute  law.  In  the  celebrated 
case  of  State  v.  Hives,  5  Ire.  Rep.  306,  the  Court  say  :  "We  agree  that  the 
franchise  itself  (that  is  of  the  Portsmouth  and  Roanoke  Railroad  Company) 
cannot  be  sold.  It  is  intangible  and  vested  in  an  artificial  being  of  a  particular 
organization,  suited,  in  the  view  of  the  Legislature,  to  the  most  proper  and  ben- 
eficial use  of  the  franchise  ;  and  therefore  it  cannot  be  assigned  to  a  person, 
natural  or  artificial,  to  which  the  Legislature  has  not  committed  its  exercise  and 
emolument."  After  stating  that  though  the  franchise  of  the  corporation  could 
not  be  taken  and  sold  under  execution,  any  vested  property  it  might  have  in 
anything  tangible,  either  personal  or  real,  might  be  so  seized  or  sold,  however 
useful, or  even  indispensable  it  may  be  to  the  enjoyment  of  the  franchise,  the  Court 
add  :  "It  may  be  very  unfortunate,  and  cau?e  much  loss,  in  a  pecuniary  sense, 
to  arrest  the  exercise  of  a  franchise,  by  depriving  its  proprietor  of  an  estate,  or 
thing  needful  to  its  exercise,  when  of  the  two,  the  franchise,  or  the  tangible 
thing,  the  former  is  much  the  more  valuable.  We  regret,  sincerely,  that  it  has 
hitherto  escaped  the  attention  of  these  companies  and  of  the  Legislature,  that 
some  act  was  necessary,  in  order  that  such  sales,  when  unavoidable,  might  be 
"made  with  the  least  loss  to  the  debtors,  and  the  greatest  advantage  to  the  cred- 
itors and  purchasers,  by  providing  for  keeping  the  franchise  with  the  estate. 
Or,  if  it  so  please  the  Legislature,  an  act  might  provide  for  putting  the  road 
into  the  hands  of  a  receiver  and  subjecting  the  Income  to  the  creditors,  instead 
of  the  estate  in  the  land,  stripped  of  the  franchise." 

The  intimation  thus  thrown  out  from  such  high  authority,  no  doubt  induced 
the  Legislature,  in  enacting  the  Revised  Code,  to  provide  for  the  sale  of  the 
franchise  of  a  railroad  or  other  corporation,  under  a  "Writ  of  fieri  facias,  issuing 
on  a  judgment  or  decree  against  it.  This  is  done  by  the  ninth  and  several  sub- 
sequent sections  of  the  26th  chapter  ot  the  Revised  Code,  concerning  "Corpo- 
rations." The  ninth  section  declares  that  the  franchise  of  the  corporation 
"with  all  the  rights  and  privileges  thereof,  so  far  as  the  receiving  of  fare  or  tolls, 
and  also  all  other  corporate  property,  real  and  personal,  may  be  taken  on  exe- 
cution and  sold  under  the  rules  regulating  real  estate."  By  the  tenth  section, 
which  is  the  one  upon  which  t.ie  question  in  the  case  arises,  it  is  enacted  as  fol- 
lows :  "In  the  sale  of  the  franchise  of  any  corporation,  the  person  who  shall 
satisfy  the  execution,  with  all  costs  thereon,  or  who  shall  agree  to  take  such 
franchise,  for  the  shortest  period  of  time,  and  to  receive    during    that    time    all 


(228) 

such  tare  and  toll  as  the  said  corporation  would  by  law  be  entitled  to  demand 
shall  be  considered  as  the  highest  bidder."  The  plaintiff"  claims  to  be  the  pur- 
chaser of  the  franchise  of  the  Neuse  River  Navigation  Company,  at  an  cxecu  » 
tion  sale  of  the  same  upon  a  bid  far  below  the  amount  of  the  execution  and 
costs,  and  the  question  is,  can  she  be  considered  as  the  highest  bidder  within 
the  meaning  of  the  above  recited  section  of  the  act.  The  plaintiffs  council  con- 
tend that  she  can,  and  they  insist  that  a  fair  construction  of  the  section  is,  that 
the  officer  who  conducts  the  sale,  must  offer  the  franchise  until  he  gets  the  high- 
est bid  which  any  person  present  is  willing  to  make,  and  that  he  is  then  to  offer 
the  franchise  to  any  person  who  is  willing  to  take  it  for  the  shortest  time  at 
that  price.  In  other  words,  his  auction  is  to  be  a  singular  compound  of  the 
English  and  the  Dutch  ;  beginning  with  the  former  an  !  ending  with  the  latter, 
There  are  two  fatal  objections  to  this  construction.  One  is.  that  it  loses  sight 
altogether  of  the  requirement  to  pay  and  satisfy  the  execution  and  costs.  The 
second  is,  that  until  the  execution  and  costs  are  satisfied,  the  sheriff  or  other  of- 
ficer will,  whenever  the  bid  is  for  a  period  of  the  franchise  short  of  the  whole 
duration,  have  to  go  on  selling  it  out  by  piece-meal,  until  the  whole  is  disposed 
of.  Such  a  mode  of  selling,  certainly,  was  never  in  the  contemplation  of  the 
Legislature.  It  cannot  be  denied  that  the  language  of  the  section  is  somewhat 
obscure,  and  this  obscurity  is  caused  by  the  attempt  of  the  writer  to  make  it 
concise  ;  but  by  attending  to  the  object  which  he  had  in  view,  we  can  discover^ 
Avith  unerring  certainty,  the  meaning  of  the  provision.  A  prominent  purpose 
was,  undoubtedly,  to  have  the  execution  and  the  costs  thereon  satisfied  by  the 
sale  of  the  franchise.  To  accomplish  this  purpose,  the  section  distinctly  desig- 
nates two  persons,  either  of  whom,  may,  according  to  the  circumstances,  be  the 
highest  bidder,  and  therefore,  the  purchaser.  The  first  is  the  person  who,  if 
there  be  no  other  bidder,  will  take  the  corporate  franchise  for  the  whole  period 
of  its  existence  upon  the  terms  of  paying  off  the  execution  and  costs.  But  if  any 
other  person  will,  upon  the  same  terms  of  paying  the  execution  and  costs,  take  the 
franchise  for  a  shorter  period,  then  he  shall  be  considered  lo  be  the  highest  bidder, 
and  therefore  the  purchaser.  The  section  consists  of  only  one  sentence,  and 
that  is  mantfestly  eliptical.  if  expressed  without  the  elipsis,  the  sentence  will 
read  thus  :  In  the  sale  of  the  franchise  of  any  corporation,  the  person  who  shall 
satisfy  the  execution,  with  all  costs  thereon,  shall  be  considered  the  highest 
bidder  :  Or  the  person  who,  upon  paying  such  execution  and  costs,  shall  agree 
to  take  such  franchise  tor  the  shortest  period  of  time,  and  to  receive  during  the 
time  all  such  fare  and  tolls  as  the  said  corporation  would  by  law  be  entitled  to 
demand,  shall  be  considered  the  highest  bidder.  Thus  expressed,  the  object  of 
the  Legislature  is  obvious,  and  its  meaning  clear  beyond  a  doubt.  Neither  the 
judgment  creditor,  nor  any  other  person  can  become  a  purchaser  under  the  ex- 
ecution, unless  he  satisfied  it,  together  with  all  the  costs  thereon  ;  but  by  pay- 
ing the  execution  and  costs,  he  may  become  the  purchaser  unless  some  person 
will  over-bid  him  bv  agreeing  to  take  the  franchise  upon  making  the  same  pay- 
ment lor  a  shorter  period,  and  he  who  will  take  it  for  the  shortest  period,  shall, 
in  the  language  of  the  act  "be  considered  as  the  highest  bidder."  If  this  con- 
struction of  the  section  be  correct,  (and  about  that  we  have  no  doubt,)  the  plain- 


(   229  ) 

tiff  was  not  a  purchaser  of  the  franchise  which  she  claims,  and  consequently 
her  action  fails.  She  was  therefore,  properly  nonsuited,  and  the  judgment 
must  be  affirmed. 

Per  Curiam,  Judgment  affirmed. 


Gooch  vs.  McGee,  83  N.    C.  Rep,  59. 

Execution  Against  Corporation — What    Property  Subject  to. 

The  real  estale  acquired  by  a  public  corporation  in  exe-cise  of  a  delegated  right  of  emi- 
nent domain,  and  ueeessrry  for  uses  in  which  the  public  is  concerned,  cannot  be  sold  un- 
der execution  apart  from  the  franchise  and  its  incidents,  so  as  to  give  the  purchaser  a  ti- 
tle 10  the  property  divested  of  all  the  duties  and  obligations  assumed  by  the  company. 

(State  v.  Kives,  5  Irtd.,  297,  cited  and  commented  on.) 

Civil  Action  to  recover  land,  tried  at  Spring  Term,  1879,  of  Halifax  Superior 
Court,  before  Eure,  J. 

Case  agreed  :  In  the  year  1812.  the  legislature  granted  a  charter  to  the  Roan- 
oke navigation  company,  under  an  act  entitled  "an  act  lor  improving  the  navig- 
ation of  Roanoke  river  from  the  town  of  Halifax  to  the  Virginia  line,"  and  a 
company  was  duly  organized  thereunder  at  a  meeting  of  the  stockholders  held 
in  the  town  of  Halifax  on  the  fourth  Monday  of  October,  1815;  the  proceedings 
of  which  meeting  were  ratified  by  the  legislature  at  its  session  of  1816.  And 
said  corporation  has  since  fully  performed  and  complied  with  the  provisions  of 
its  charter  and  the  acts  amendatory  thereof.  On  the  23d  of  October,  1818,  a 
tract  of  land  belonging  to  the  heirs  of  Daniel  Weldon,  deceased,  (of  which  the 
land  in  dispute  is  a  part)  was  condemned  under  the  provisions  of  said  charter, 
and  an  act  subsequently  passed  (1817).  Said  land  was  necessary  for  the  purposes 
of  the  company,  was  then  paid  for  and  entered,  and  has  ever  since  been  in  pos- 
session of  said  company.  The  locus  in  quo  (which  is  particularly  described  in 
the  case)  is  occupied  by  the  defendant,  under  a  lease  from  said  company.  In 
1878,  judgments  were  recovered  against  the  company  in  favor  of  certain  per- 
sons, executions  issued  thereon,  and  at  the  sheriff's  sale  in  1879,  the  plaintiff 
became  the  purchaser.  Under  the  act  of  1874  '75,  ch.  198,  an  action  was  in- 
stituted in  Halifax  Superior  Court  (and  is  uo.v  pending)  for  the  dissolution  of 
the  company,  appointment  of  a  receiver,  &c.  If  upon  these  facts  the  Court 
shall  be  of  opinion  that  the  plaintiff  is  entitled  to  recover,  tnen  judgment  shall 
be  rendered  in  his  favor  for  the  possession  of  the  land  and  for  costs;  but  if  other- 
wise, then  a  judgment  of  nonsuit  shall  be  entered.  The  Court  adjudged  in 
favor  of  plaintiff  and  ordered  a  writ  of  possession  to  issue,  and  the  defendant 
appealed. 

Messrs.  Day  &•  Zollicoffer,  Gilliam  c£-  Galling,  Mullen  &  Moore  and  J.  B. 
Batchelor,  for  plaintiff. 

Mr.  Theo.  N.  Hill,  for  defendant. 

Smith,  C.  J.     The  plaintiff  purchased  at  a  sale  under  execution  against  the 


(23°) 

Roanoke  navigation  company,  certain  land  which  had  been  theretofore  condemn- 
ed for  its  use,  under  the  provisions  of  the  act  of  Incorporation,  including  the  bed 
covered  by  the  waters  of  the  canal,  at  its  terminus  near  Weldon,  and  in  this  suit 
seeks  to  recover  possession.  The  defendant  had  leased  th^  land  from  the  com- 
pany for  a  period  which  had  expired  before  the  day  of  sale,  but  still  continued 
in  possession,  refusing  to  surrender  to  the  plaintiff. 

Under  an  act  of  the  general  assembly  entitled  "an  act  for  the  dissolution  of 
the  Roanoke  navigation  company,"  passed  at  the  session  of  18T4-'75,  ch.  198, 
proceedings  bad  been  instituted  in  the  Superior  Court  of  Halifax  and  the  com- 
plaint filed,  but  no  further  action  taken  at  the  date  of  sale.  Two  objections  are 
urged ''for  the  appellant : 

1.  That  the  proceeding  to  annul  the  corporation  and  dispose  of  its  property 
directed  by  the  statute  supersedes  and  renders  litigatory  the  interference  of  a 
creditor,  and  that  no  title  passed  by  the  sheriff's  deed;  and 

2.  That  the  canal  bed,  as  severable  from  its  general  property  and  franchise, 
is  not  subject  to  execution. 

We  propose  to  consider  the  last  proposition  first.  In  State  v.  Rives,  5  Ired., 
297,  a  sale  of  so  much  of  tbe  road  bed  of  the  Portsmouth  and  Roanoke  railroad 
company  as  was  within  the  county  of  Northampton,  under  an  execution  at  the 
instance  of  a  judgment  creditor,  was  held  to  be  legal,  and  the  purchaser  to  have 
acquired  title  to  the  land.  This  was  because  of  the  assumed  want  of  any  other 
remedy  for  tbe  creditor,  and  by  force  of  the  statute  which  authorized  a  plaintiff 
to  sue  out  against  a  corporation  debtor,  "a  distringas  or  fieri  facias,  as  he  may 
think  proper,  and  tbe  said  writs  of  distringas  ox  fieri  facias  may  be  levied  as 
well  on  the  current  money  as  on  the  goods,  chattels,  lands  and  tenements  of  the 
said  corporation."  Rev.  Stat.,  ch.  26,  §  5.  The  result  of  upholding  this  diver 
sion  of  the  property  from  the  original  and  intended  purposes  of  its  condemnation 
to  the  use  of  the  company,  and  the  injustice  done  the  former  owner,  whose 
damages  were  lessened  by  the  advantages  to  be  derived  from  the  construction  of 
the  proposed  improvement,  conducted  the  mind  of  the  late  Chief  Justice,  who 
presided  at  the  trial  in  the  Superior  Court,  to  the  conclusion  that  the  sale  was 
not  authorized  by  law.  In  delivering  the  overruling  op.nion  in  this  Court,  Ruf- 
fin,  C.  J.,  declaring  that  '"the  legislature  can  prescribe  what  shall  or  shall  not 
be  the  subject  of  execution,"  proceeds  to  say  :  "We  agree  that  the  franchise  can- 
not be  sold.  It  is  intangible  and  vested  in  an  artificial  being,  of  a  particular 
organization,  suited  in  the  view  of  the  legislature  to  the  most  proper  and  bene- 
ficial use  of  tbe  franchise,  and  therefore  it  cannot  be  assigned  to  a  person  natu- 
ral or  artificial,  to  which  the  legislature  bas  not  committed  its  exercise  and 
emolument,"  and  he  adds  :  "We  regret  sincerely  that  it  bas  hitherto  escaped 
the  attention  of  these  companies  and  of  the  legislature,  that  some  act  was  neces- 
sary, in  order  that  such  sales,  when  unavoidable,  might  be  made  with  the  least 
loss  to  the  debators  and  with  the  greatest  advantage  to  tbe  creditors  and  pur- 
chasers, by  providing  for  keeping  up  tbe  franchise  with  the  estate." 

The  correctness  of  the  general  proposition  that  the  property,  real  and  personal, 
of  corporations  formed  for  the  prosecution  of  objects  of  personal  benefit,  as  that 
belonging  to  individuals,  may  be  seized  and  by  sale  appropriated  to  the  payment 


(  23r  ) 

of  its  debts,  does  not  admit  of  question.  Between  them  the  law  makes  no  dis- 
tinction, as  has  been  repeatedly  decided.  Maryland  v.  Bank,  6  Gill  &  John., 
205;  Ev.  /...  c(V..  to.  Buf.  //yd.  Association,  G4  N.  Y.,  561;  ^_aeen  v.  Vict. 
Park  Co.,  41  E.  C.  L.  R.,  544.  But  so  far  as  the  opinion,  except  by  force  of 
the  statute,  extends  the  liability  to  the  estate,  of  corporations  created  for  public 
purposes,  indispensable  to  the  exercise  of  the  conferred  franchise  and  to  the  per- 
formance of  correlative  duties,  it  is  not  in  harmony  with  adjudications  elsewhere 
of  the  highest  authority,  and  we  are  not  disposed  to  enlarge  the  sphere  of  its 
operation.     Some  of  the  cases  on  the  subject  will  be  noticed. 

In  Ammant  v.  President,  <&c,  Turnpike  Co.,  13.  Serg.  &  Rawle,  2l0,  the 
plaintiff  bought  at  execution  sale,  "all  the  right,  title,  interest  and  dawn,"  of  the 
company,  "'of,  in  and  to  ten  miles  of  its  road,"  with  specified  limits,  and  it  was 
held  that  he  acquired  no  property  by  his  purchase.  Tilguiman,  C.  J.,  declaring 
that  "the  inconvenience  would  be  excessive,  if  the  right  of  the  company  could 
be  cut  up  into  an  indefinite  number  of  small  parts  and  invested  in  individuals,'' 
and  that  the  turnpike  company  "alone  were  confided  in,  and  they  alone  looked 
t "),  for  a  faithful  performance  of  the  important  duties  incumbent  upon  them." 

In  Gue  v.  Tide  Water  Canal,  24  How.,  (U.  S.)  257,  execution  had  been 
levied  "on  a  ho  ;se  and  lot,  sundry  canal  boats,  a  wharf  and  sundry  other  lots,'' 
and  an  injunction  asked  to  restrain  the  sale.  Chief  Justice  Taney  delivering 
the  opinion,  uses  this  language  :  "The  property  seized  by  the  marshal  is  of  itself 
of  scarcely  any  value  apart  from  the  franchise  of  taking  toll  with  which  it  is 
connected  m  the  hands  of  the  company,  and  if  sold  under  this  fieri  facias 
without  the  franchise,  would  bring  scarcely  anything,  but  would  yet,  as  it  is 
essential  to  the  working  of  the  canal,  render  the  property  of  the  company  in  the 
franchise,  now  so  valuable  and  productive,  utterly  valueless,"  and  he  adds  : 
"It  would  be  against  the.  principles  of  equity  to  allow  a  single  creditor  to  des- 
troy a  fund  to  which  other  creditors  had  a  right  to  look  for  payment,  and  equally 
against  the  principles  of  e  luity  to  par  nit  hi  n  t)  d33troy  ta3  value  of  the  pro- 
perty of  the  stockholders  by  dissevering  from  the  franchise  property  which 
•was  essential  to  its  useful  existence." 

In  Coe  v.  R.  R.  Co.,  10  Ohio,  372,  the  rule  is  thus  laid  down  :  "When 
power  is  given  to  acquire  an  interest  in  real  estate,  for  the  single  and  exclusive 
purpose  of  the  exercise  of  a  franchise,  and  particularly  when  to  acquire  such 
interest  there  is  a  delegation  of  the  power  of  eminent  domain,  the  interest  can- 
not be  separated  from  the  use  to  which  alone  it  can  be  applied,  and  if  the 
franchise  cannot  be  convej'ed,  neither  can  the  interest  in  real  estate,  with 
"Which  it  is  connected." 

A  very  forcible  and  clear  view  of  the  subject  is  presented  by  Woodward,  J., 
'in  R.  R.  Co.  v.  Co/well,  39  Penn.,  337.  "Lands  bought  and  not  dedicated  to 
corporate  purposes  are  bound  by  the  lien  of  judgments  and  are  liable  to  be  levi- 
ed in  execution  and  sold  by  the  sheriff  in  the  same  manner,  and  with  the  same 
effect  as  the  lands  of  any  other  debtor.  As  to  land  which  has  been  appropria. 
ted  to  corporate  objects,  and  is  necessary  for  the  full  enjoyment  and  exercise  of 
any  franchise  of  the  company,  whether  acquired  by  purchase  or  by  exercise  of 
the  delegated  power  of  eminent  domain,  the  company  hold  it  entirely   exempt 


\   Kb*   ) 

from  levy  and  sale,  and  this  on  no  ground  of  prerogative  or  corporate  immunity, 
for  the  company  can  no  more  alien  or  transfer  such  land  by  their  own  act  than 
can  a  creditor  by  legal  process,  but  the  exemption  rests  on  the  public  interests 
involved  in  the  corporation.  For  the  snke  of  the  public,  whatever  is  essential  to 
the  corporate  functions  shall  be  retained  by  the  corporation.  A  railroad  compa- 
ny could  scarcely  accomplish  the  end  of  its  being  after  the  ground  on  which  its 
rails  rest  had  been  sold  to  a  stranger." 

''The  road,  with  all  its  appurtenances,"  remarks  Sharswood,  J.,  in  the  more 
recent  cased  of  Youngman  v.  R  R.  Co  ,  65  Penn.,  278,  "being  necessary  to 
the  exercise  of  the  franchise  granted  by  the  sale,  could  not  be  levied  on  and  sold 
under  execution  on  a  judgnent  agiinst  the  corporation." 

TheMistinction  between  corporate  property  which  can  an'i  cannot  be  reached 
by  a  fieri  facias is  well  defined  and  strongly  presented  in  the  opinion  of  Thomp- 
son, C.  J.,  in  a  case  determined  in  1838,  (Foster  v.  Foivler,  60  Penn.,  27,)  in 
which,  after  discriminating  between  "those  corporations  that  are  agencies  of 
the  public,  directly  affecting  it,  and  those  which  only  affect  it  indirectly,  by 
adding  to  its  property  in  developing  its  natural  resources  or  in  improving  its 
mental  or  moral  qualities,"  he  says  :  "Of  the  former  are  corporations  for  the 
building  of  bridges,  turnpike  roads,  railroads,  canals,  and  the  like.  The  public 
is  directly  interested  in  the  results  to  be  produced  by  such  corporations,  in  the 
facilities  afforded  to  travel  and  the  movements  of  trade  and  commerce.  It  is 
well  settled  that  this  use  is  not  to  be  disturbed  by  the  seizure  of  any  part  of  their 
propeily,  essential  to  their  active  operation-,  by  creditors.  They  must  recover 
their  debts  by  sequestering  their  earnings,  allowing  them  to  progress  with  their 
undertaking  to  accommodate  the  public.  This  direct  benefit  to,  and  accommod- 
ation of  the  public  clearly  distinguish  this  class  of  companies  from  the  second 
class,  viz  :  private  corporations,  or  those  in  which  the  public  is  but  ndi  rectly 
interested,  such  as  mining  and  manufacturing,  coal  and  iron  companies,  libraries, 
literary  societies,  schools,  and  the  like." 

In  our  researches  we  have  met  with  a  single   case,    (Arthur  v.  Bank,  9  Sine 
&Mar.,  Miss.,  394,)  recognizing  the  authority  and   approving    the   decision  in 
State  v.  Rives,  and  in  opposition  to  the  current  of  judicial  opinion. 

The  general  words  of  the  statute,  which  to  some  extent  influenced  that  decision 
may  without  violence  to  their  meaning  admit  of  a  narrower  scope  and  be  re- 
stricted to  the  property  of  private  corporations,  and  to  that  of  public  corpora- 
tions, which  may  be  replaced  and  is  not  indispensable  to  the  exercise  of  tl  ( ir 
necessary  functions  and  the  discharge  of  public  duties,  upon  the  distinction 
taken  in  the  cases  cited.  But  we  are  not  required  to  question  the  correctness  of 
the  construction  which  so  widely  extends  the  application  of  the  law.  It  has 
since  been  amended  in  accordance  with  the  suggestion  of  the  chief  justice  and 
the  very  remedy  pointed  out  has  been  given.  The  franchises  of  a  class  of  cor- 
porations, to  which  that  then  under  consideration  belongs,  with  all  the  corporate 
property  may  now  be  reached  and  its  profits  applied  to  the  satisfaction  of  the 
claims  of  creditors.  To  the  section,  remaining  substantially  unchanged,  has 
been  added  the  following :  "And  if  the  judgment  or  decree  be  against  a  rail- 
road, or  other  corporation  authorized  to  receive  fare  or  tolls,    the  franchise  of 


(  233  ) 

such  corporation,  with  all  the  rights  and  privileges  thereof,  so  far  as  relates  to 
the  receiving  of  fare  or  tolls,  and  also  all  other  corporate  property,  real  and  per- 
sonal, may  be  taken  on  execution  and  sold,  under  rules  regulating  the  sale  of 
real  estate."  Rev.  Code,  ch.  26,  §  9.  The  amendments  further  provide  f  ,r  the 
manner  of  selling  and  that  the  sheriff  shall  "deliver  to  the  purchaser  possession 
of  all  the  corporate  property  connected  with  the  franchise  belonging  to  such 
corporation  in  whatever  county  the  same  may  be  situated."     §§  10,   11. 

In  furtherance  of  the  same  policy  of  preserving  intact  the  corporate  privileges 
bestowed  for  the  public  benefit,  it  has  been  enacted  that  purchasers  of  the  pro- 
perty at  a  mortgage  sale  shall  ipso  facto  become  a  body  Corporate  and  "succeed 
to  all  such  franchises,  rights  and  privileges,  and  perform  all  such  duties"  as  the 
preceding  corporation  possessed,  except  that  they  shall  not  incur  liability  for  its 
obligations.     Bat.  Rev.,  ch.  26,  §§  46  and  47. 

It  will  be  observed  that  the  subjection  of  the  franchise  to  execution  is  confined 
to  such  corporations  as  may  "receive  fare  or  tolls,"  leaving  all  others  to  the 
operation  of  the  pre-existing  law,  and  both  acts  look  to  the  continued  association 
of  the  property  with  the  franchise.  Thus  the  public  interests  remain  unaffected 
by  proceedings  that  result  in  a  change  of  ownership  merely,  and  a  transfer  of 
public  duties  from  one  to  another  party.  This  legislation  springing  out  of  the 
decision  in  Rives'1  case,  and  intended  to  obviate  the  inconveniences  of  a  disrup- 
tion of  the  company  and  the  loss  of  those  facilities  for  travel  and  transportation 
which  it  had  afforded,  must,  we  think,  be  deemed  an  expression  of  the  legisla- 
tive will,  to  substitute  the  new  in  place  of  the  former  remedy.  It  secures  to 
creditors  all  their  just  rights,  yet  in  subordination  to  the  higher  public  demand 
for  an  unobstructed  road,  and  without  wrong  to  those  from  whom  the  land  has 
been  taken  and  appropriated  to  its  use.  It  must  therefore  be  declared  that  the 
plaintiff  acquired  no  estate  in  the  land  by  virtue  of  the  sale  and  sheriff  deed.  It 
is  unnecessary  to  pass  upon  the  other  defence.  According  to  the  case  agreed,  a 
nonsuit  must  be  entered  and  it  is  so  ordered. 

Error.  Reversed. 


(  234  J 


(  -\35  ) 


(236) 


FLORIDA    COMPROMISE— WILLARD   CONTRACT 


In  the     Circuit    Court    of  the    United  States,  Jor   the  Northern 
District  of  Florida  : 

The  Western  North  Carolina  Railroad  Company,  ) 

I 
Geoi  ge    F.    Drew,  (governor.    Trustee.   &c.     1  he  j 

Florida  Central  Railroad  Company  et  al.  J 

The  Western  Notth  Carolina  Railroad  Company.") 

I 
George    i .  Drew,    Governor,  Trustee.    &c.    1  Ik*  J- 

Jacksonville,    Pensacola,    and    Mobile     Railroad  [ 

Company,  et  al.  J 

J.  Fred  Schutte,  Jans  Prius.  et  al.,  t 

vs.  | 

The  Jacksonville,  Pensacola  and    Mobile  Railroad  ( 

Co.,  George  F.  Drew,  Governor  of  the    State   of  | 

Florida,  et  al.  I 

Memorandum  of  an  agreement  made  and  entered  into,  this  i-^th 
day  of  September.  A.  D.  1S79.  between  James  W.  Wilson,  Wil- 
liam T.  Dortch  and  John  S.  Henderson,  a  special  committee  duly 
appointed  and  fully  empowered  to  represent  the  Western  North 
Carolina  Railroad  Company,  and  Charles  D.  Willard,  of  the  city 
of  Washington.  D.  C  the  attorney  in  fact  and  solicitor  ot  the 
complainants,  J.  Fred  Schutte  and  others,  in  the  above  entitled 
suits,  witnesseth  : 

Whereas,  The  said  complainants,  J.  Fred  Schutte  and  others,  did  obtain  a 
decree  of  sale  of  the  Florida  Central  Railroad  and  the  Jacksonville.  Pensacola 
and  Mobile  Railroad,  on  the  31st  day  of  May.  1879.  fro™  which  said  decree  the 
said  Western  North  Carolina  Railroad  Company  has  appealed  and  filed  a  su- 
persedeas bond  in  said  suits  ; 

And  whereas.  The  said  complainants,  Schutte  and  others,  are  desirous  of 
procuring  the  dismissal  of  said  appeal,  and  the  withdrawal  and  vacation  of  said 
bond,  so  that  a  sale  of  said  railroads  under  said  decree  shall  take  place  as  now 
advertised,  or  at  the  earliest  practicable  day  ;  and  are  also  desirous  of  succeed- 
ing to  all  the  rights,  claims  and  demands  which  said  Western  North  Carolina 
Railroad  Company  may  have  acquired  in  and  to  the  stock  and  other  property 
of  the  Florida  Central  R.  R.  Company  and  the  Jacksonville,  Pensacola  and 
Mobile  Riilroad  Company,  and  all  the  rights,   claims   and    demands    of  every 


(  237  ) 

kind,  nature  and  description  against  said  Florida  Central  R.  R.  Co.,  now  be- 
longing to  the  said  Western  North  Carolina  R.  R.  Company,  with  a  vie^of 
settling,  compromising  and  forever  adjusting  all  litigation,  differences  and  dis- 
putes between  said  Western  North  Carolina  R.  R.  Co.,  and  the  said  complain- 
ants, y.  Fred  Schutte  and  others,  in  respect  to  the  said  Florida  railroads  ; 

And  Whereas,  The  said  Western  N.  C.  R.  R.  Co.  is  equally  desirous  of 
terminating  all  said  litigation  and  compromising  the  questions  and  disputes  at 
issue  between  said  complainants,  J.  Fred  Schutte  and  others,  and  said  Western 
North  Carolina  R.  R.  Co.,  in  respect  to  said  Florida  railroads  ; 

Now,  therefore,  it  is  hereby  mutually  agreed  between  said  parties  hereto  that 
in  consideration  of  the  premises  and  the  dismissal  of  said  appeal,  and  the  vaca- 
ting of  said  supersedeas  bond  filed  by  the  said  W.  N.  C.  R.  R.  Co.,  as  afore- 
said, and  in  full  settlement  forever  o^  all  claims  of  said  W.  N.  C.  R.  R.  Co. 
upon  and  against  and  on  account  of  said  Florida  railroads,  and  also  the  trans- 
fer of  said  claims  to  the  said  complainants,  J.  Fred  Schutte  and  others,  that  the 
said  C.  D.  Willard,  attorney  in  fact  and  solicitor  of  said  complainants,  hereby 
obligates  himself  and  agrees  to  pay  to  the  order  of  said  special  committee,  for 
the  use  and  benefit  of  said  W.  N.  C.  R.  R.  Co.,  the  sum  of  twenty-five  thou- 
sand dollars,  upon  the  delivery  to  him  or  his  order  of  a  duly  certified  copy  of 
the  appointment  of  said  special  committee  accompanied  with  a  copy  of  the  res- 
olution of  the  Board  of  Directors  of  said  W.  N.  C.  R.  R.  Co.,  under  which 
said  appointment  was  made,  the  same  to  be  under  the  Company's  seal,  being 
the  resolution  vesting  said  special  committee  with  full  and  absolute  power  to 
settle  and  compromise  said  claims  and  litigation,  and  also  the  stipulation  or 
agrecment  this  day  signed  by  James  W.  Wilson,  Pres't.,  W.  T.  Dortch,  Solic- 
tor, of  said  W.  N.  C.  R.  R.  Co.,  and  said  C.  D.  Willard,  solicitor  of  said  com- 
plainants, Schutte  and    others,  a  copy  of  which  is  hereto  annexed. 

It  is  further  agreed  that  any  and  all  further  resolutions  or  action  necessary 
or  required  hereafter,  in  the  opinion  of  said  C.  D.  Willard,  from  said  W.  N.  C. 
R.  R.  Co.,  in  order  to  make  the  dismissal  of  said  appeal  and  vacation  of  said 
supersedeas  bond  operative  and  effective,  shall  be  supplied  on  request  of  said 
Willard.  by  said  W.  N.  C.  Railroad  Company,  at  his  cost  and  expense.  It  is 
further  agreed  that  the  sureties  on  the  said  supersedeas  bond  shall  withdraw  from 
the  same  at  or  before  the  time  of  the  payment  of  the  said  sum  of  twenty-five 
thousand  dollars. 

It  is  also  further  agreed  that  the  said  C.  D.  Willard,  solicitor  as  aforesaid, 
shall  be  vested  with  full  power  and  authority  to  proceed  in  the  name  of  the  said 
Western  North  Carolina  Railroad  Company,  in  the  courts  or  otherwise,  in  any 
manner  he  may  deem  for  his  benefit  as  said  assignee,  to  recover  title  to  any 
stock,  bonds,  or  other  property  relating  to  the  said  Florida  railroads,  except  as 
hereinafter  mentioned,  provided  the  said  W.  N.  C.  R.  R.  Co.  shall  be  saved 
harmless  from  any  costs  and  charges  whatever,  hereafter  arising  in  any 
and  all  proceedings.  It  is  further  agreed  that  the  said  C.  D.  Willard,  solicitor, 
shall  pay  or  cause  to  be  paid,  all  costs  or  charges  that  may  be,  or  have  been 
taxed  against  said  Western  North  Carolina  Railroad  Company  in  said  suits. 

It  is  hereby  further  agreed  and  understood  that  the   W.    N.    C.    R.  R.    Co., 


( 33S) 

does  not  transfer  or  surrender  anv  right  or  title  to  #94.00;)  of  the  b^nds  of  the 
Florida  Central  R.  R.  Co..  heretofore  received  by  W.  W.  Rollins.  President  of 
the  W.  1).  of  the  \V.  N.  C.  R.  R.  Co..  or  anv  other  asseV.  that  may  have  been 
received  by  him.  The  said  W.  N.  C.  R.  R.  Co.  also  reserves  the  right  to  pros- 
ecute the  suits  now  pending,  or  which  may  be  hereafter  instituted  by  said  Company 
to  recover  any  such  assets  from  the  Western  Div'n  of  W.  N.  C.  R.  R.  Co.,  iis 
ofhYers,  agents  or  attorneys. 

W.  N.  C.  Railroad  Company, 

By  James  W.  Wilson,  Pres't, 
Wm.  T.  Dortch,  Director, 
John.  S.  Hendekson,    Director. 
Jas.  W.  Wilson,  Director. 
C.   D.   WlLLARl}, 
Solicitor  for  Complainants,  J.  Fred  Schutte,  and  others. 

Signed,  sealed  and  delivered  in  duplicate  in  our  presence. 

Thos.    13.  Keogh, 
S.  H.    Wiley, 


(  syj 


(240) 


(  24I  ) 


SUIT  OF  T.  D.  CARTER. 


Buncombe  County  : — In  the  Superioe  Court. 

Thomas  D.  Carter,  ) 

Against  [•  Summons. 

The  Western  North  Carolina  Railroad  Company. ) 

The  State  of  North  Carolina, 

To  the  Sheriff  of  Buncombe  County — Greeting : 
You  are  hereby  commanded,  to  summon  the  Western  North  Carolina  Railroad 
Company,  the  defendant   above  named,  if  it  he  found  within  your  county,  to  be 
and  appear  before  the  Judge,  of  our  Superior  Court,  at  a  Court  to  be  held  for  the 
county  of  Buncombe  at  the  Court  House  in  Asheville  on  the  4th   Monday  after 
the  4th  Monday  in  August,  1876,  and  answer  the  complaint  which  will  be  deposi- 
ted in  the  office  of  the  Clerk  of  the  Superior  Court  of  said    county,    within    the 
first  three  days  of  the  next  term  thereof,  and  let  the  said  defendant  take  notice 
that  if  it  fail  to  answer  the  Si.id  complaint  within  that  time,    the  plaintiff  will 
take  judgment  for  the  relief  demanded  in  the  complaint. 
Hereof  fail  not,  and  of  this  summons  make  due  return. 
Given  under  my  haud  and  seal  of  said  Court,  this  31st  day  of  August,  1876. 

(Signed.)        J.  E.  Reed, 
Clerk  Superior  Court,  Buncombe  County. 

Said  summons  endorsed  as  follows  : 

Service  accepted  this  31st.  August,  1876. 

W.  W.  Rollins,  Chm'n 


Commissioners. 


Superior  Court,  )    Fall  Term,  1S76. 

Buncombe  County.  \ 


Thomas  D.  Carter,  ) 

Against  [-  Complaint. 

The  Western  North    Carolina    F_ailroad  Company. ) 

The  plaintiff  above  named  alleges  : 

1st.  That  he  is  the  owner  in  fee  of  the  property,  franchises  and  effects  of  the 
Western  North  Carolina  Railroad  Company.  Complaint. 

2nd.  That  W.  W.  Rollins,  William  S.  Pearson.  W.  P.  Canady,  Samuel 
McD.  Tate,  are  in  possession  of  the  property,  franchises  and  effects  of  said 
Western  North  Carolina  Railroad  Company,  holding  and  using  the  same  with- 
out lawful  authority  so  to  do. 


(  242  ) 

3rd.  That  the  said  W.  W.  Rollins,  William  S.  Pearson,  W.  P.  Canady  and 
Samuel  McD.  Tate  withhold  the  possession  of  the  said  property,  franchises  and 
effects  of  the  said  Western  North  Carolina  Railroad  Company  from  the  said 
plaintiff. 

Wherefore  the  said  plaintiff  demands  judgment, 

ist.  For  the  possession  of  the  property,  franchise  and  effects  of  the  said 
Western  North  Carolina  Railroad  Company. 

2nd.  For  thirty  thousand  dollars  the  plaintiff's  damages  by  the  withholding  of 
the  same,  together  with  his  costs. 

(Signed,)  Erwin    &  Reed, 

fc  Pl'ff's  Attorney. 

Thomas  D.  Carter,  the  plaintiff  above  named,  swears  that  he  has  heard  read 
the  foregoing  complaint,  and  understands  the  same;  that  the  facts  therein  stated, 
of  his  own  knowledge  are  true,  and  those  stated  on  information  and  belief,  he 
believes  to  be  true. 

(Signed,)  T.  D.  Carter. 

Sworn  to  and  subscribed  this  27th  day  of  September,  1876. 

(Signed,)  J.  E.  Reed,  Clerk. 

Thomas  D.  Carter,  ) 

Amended  com-  vs  I 

'  The  Western  N.  Carolina    Railroad  Company. J 

The  amended  complaint  of  the  plaintiff  asks  to  substitute  for  the  first  allega- 
tion of  the  complaint  on  file,  the  lollowing  : 

ist.  That  on  the  7th  day  of  January,  1S76,  he  purchased  at  execution  sale, 
the  franchise  and  corporate  property  of  the  said  the  Western  North  Carolina 
Railroad  Company,  and  he  is  advised  and  believes  that  he  acquired  in  himself, 
by  said  purchase  the  legal  title  to  said  franchise  and  property,  and  that  he  be- 
came the  owner  thereof  in  fee   simple  by  his  said  pm-chase. 

(Signed.)  M.  Erwix,  Att'y. 

Thomas  D.  Carter,  the  plaintiff  in  the  foregoing  action,  swears  that  the 
amended  complaint  above  has  been  read  to  him  and  he  understands  the  same  ; 
that  the  facts  therein  stated,  as  of  his  own  knowledge  are  true,  and  those  which 
are  stated  on  information  and  belief,  he  believes  to  be  true. 

(Signed,)  Thos.  D.  Carter. 

Sworn  to  and  subscribed  before  me,  this  nth  day  of  Sept..  1S77. 
(Signed,)  J.  E.  Reed,  Cl'k. 

North  Carolina,  )    Superior  Court,  Fall  Term.  1S76. 

Buncombe   County.) 

Thomas  D.  Carter,  ) 

vs.  vAnswer. 

The  Western  North    Carolina    Railroad    Company. ) 

The  defendants,  through  W.  W.  Rollins,  the  President  of  the  commissioners 
of  the  Western  North  Carolina  Railroad  Company  composed   of  himself,    W. 


(  243  ) 

S.  Pearson,  W.  P.  Canady  and  Samuel  McD.  Tate,    answering    the  complaint 
of  the  plaintiff  herein,  for  answer  should  say  : 

ist.  That  he  is  advised  and  believes  that  the  plaintiff  is  not  the  owner  in  fee 
or  otherwise  of  the  property,  franchise  and  effects  of  the  said  Western  North 
Carolina  Railroad  Company  nor  any  part  thereof;  and  he  avers  that  the  first 
paragraph  of  the  plaintiff's  complaint  is  untrue. 

2nd.  That  lie  admits  that  he  and  his  co-defendants  are  in  possession  of  the 
property,  franchise  and  effects  of  the  said  W.  N.  C.  R.  R.,  but  avers  that  they 
hold  the  same  lawfully,  under  and  by  virtue  of  an  act  of  the  General  Assembly 
of  the  State  of  North  Carolina,  entitled,  ".-Vri  Act  in  relation  to  the  Western 
North  Carolina  Railroad,"  ratified  the  13th  of  March,  1875. 

3rd.  That  the  allegation  of  the  third  paragraph  of  said  complaint  that  the 
defendants  withhold  the  possession  of  the  said  property,  franchises  and  effects 
of  the  said  Western  North  Carolina  Railroad  Company  from  the  plaintiff  is 
untrue. 

Wherefore  defendants  demand  judgment  for  their  cost's  in  this  behalf  incurred. 

(Signed.)  James  H.  Merrimon, 

(Signed,)  McLouo  Si  Pulliam, 

Def'ts  Attorneys. 

W.  W.  Rollins  being  duly  sworn,  says  : 

I  have  heard  read  the  foregoing  answer  and  know  the  contents  thereof,  that 
the  same  is  true  of  my  own  knowledge,  except  as  to  matter;;  therein  stated  on 
information  and  belief,  and  as  to  these  he  believes  it  to  be  true. 

(Signed,)  W.  W.  Rollins. 

Sworn  to  and  subscribed  before  me  this  7th  October,  1S76. 

(Signed,)  J.  E.  Rekd,  Cl'k  Sup'r  Court. 

(By  Geo.  W.  Reed,  D.  C.) 


(M4  ) 


(  245  ) 


(246) 


APPENDIX, 


DEED  FROM  W.  F.  WOSSON,  Sh'ff,  TO  R.  Y.  McADEN, 


Know  all  men  by  tlie.se  presents  that  I,  W.  F.  Wosson,  of  the  county  of 
Iredell,  in  the  State  of  North  Carolina  by  virtue  of  a  writ  of  fieri  facias  issued 
from  the  Superior  Court  of  Iredell  county  in  said  State  in  the  case  to  wit :  Hi- 
ram Kelly  against  the  Western  Nortli  Carolina  Railroad  Company,  and  directed 
to  me,  as  of  record  doth  appear,  having  levied  said  peri  facias  on  the  franchise 
with  a 'I  the  rights  and  privileges  thereof  of  the  said  "the  Western  North  Car- 
olina Railroad  Company"  ou  the  l*t  day  of  December,  A.  D.,  1871,  and  having 
made  advertisement  of  sale  of  same  according  to  law,  and  having  given  said 
company  due  notice  of  said  sale,  have  soid  sail  franchise  and  all  the  right,  and 
privileges,  and  all  other  corporate  property,  real  and  personal  of  said  company 
on  the  6th  day  of  January,  A.  D.,  1872,  at  the  Co  irt  House  door  in  said  county 
of  Iredell,  when  and  where  R.  Y.  McAden,  of  the  county  of  Mecklenburg,  in 
said  State  of  North  Carolina,  became  the  last  and  highest  bidder  for  said  franchise 
and  tlie  rights,  and  privileges  thereof,  and  the  said  other  corporate  property,  &c, 
by  bidding  for  the  same  amount  of  said  judgment  and  cost  in  that  behalf  to  wit : 
the  sum  of  two  hundred  and  eighty  dollars  and  forty-six  cents,  which  said  sum 
of  money  has  been  paid  to  me  as  such  Sheriff  according  to  the  terms  of  said  sale. 

And  that  I,  W.  F.  Wosson,  Sheriff,  as  aforesaid  in  consideration  of  the  pre- 
mises, and  in  consideration  of  the  said  purchase  money  paid  to  me  by  the  said 
R.  Y.  McAden  as  aforesaid,  the  receipt  whereof  I  hereby  acknowledge,  have 
bargained  and  sold  and  by  these  presents  do  bargain,  and  sell,  and  convey  unto 
the  said  R.  Y.  McAden  and  his  heirs,  the  said  franchise,  and  all  the  rights,  and 
privileges,  and  immunities  thereof,  which  belong  to  said  corporation,  and  all 
the  other  corporate  property  both  real  and  personal  of  the  said  "the  Western 
North  Carolina  Railroad  Company"  to  have  and  to  hold  the  said  franchise,  and 
all  matters,  and  things,  and  all  rights,  and  privileges,  and  immunities,  and  all 
the  said  property  both  real  and  personal,  incident  belonging  and  appertaining 
thereunto  him  the  said  R.  Y.  McAden  and  his  heirs  in  as  full  and  ample  a  man  - 
ner  as  the  said  Sheriff  is  empowered  by  virtue  of  his  said  office  to  convey  and 
assure  the  same.  And  the  said  W.  F.  Wosson,  Sheriff,  as  aforesaid,  doth 
covenant,  promis?,  and  agree  to  and  with  the  said  R.  Y.  McAden  and  his  heirs 
that  he  and  they  shall  and  may  at  all  times  hereafter,  have,  hold,  occupy,  enjoy 
and  possess  said  franchise,  and  the  rights,  and  privileges  thereof,    aud   incident 


(  247  ) 

thereto,  and  said  property,  real  and  personal  of  said  company,  free  and  clear  of 
and  from1  all  incumbrances  had  made  and  dune,  by  him  the  said  W.  F.  Wosson, 
Sheriff  aforesaid,  or  by  his  order,  means  or  procurement,  and  the  said  W.  F. 
Wosson,  Sheriff,  &c,  will  warrant  said  franchise,  and  said  property  both  real 
and  personal  to  the  said  R.  Y.  McAden  and  his  heirs  so  far  as  he  may  do  by 
virtue  of  his  said  oifice,  and  no  further :  In  witness  whereof  the  said  W.  F. 
Wosson,  Sheriff,  as  aforesaid,  has  hereunto  set  his  hand  and  seal  the  6th  day  of 
January,  A.  D.,  1872. 

W.  F.  Wosson,  Sheriff.     [Seal.] 
Witness  : 

S.    J.  Rickkrt. 


DEED  FROM  R.  Y.    McADEN    TO    BUFORD,    LOGAN 
AND     CLYDE. 


This  indenture,  made  and  entered  into,  this  ist  day  November,  i88i,  between 
R.  Y.  McAden,  of  Charlotte,  North  Carolina,  of  the  first  part,  and  A.  S.  Bu- 
ford  and  T.  M.  Logan,  of  Richmond,  Virginia,  and  W.  P.  Clyde,  of  New 
York  City,  New  York,  of  the  second  part,  witnesseth  ; 

That  whereas,  R.  Y.  McAden  entered  into  an  agreement  to  convey  his 
title  and  interest  in  the  Western  North  Carolina  Railroad  (Eastern  Division) 
and  Western  North  Carolina  Railroad  (Western  Division,)  to  the  State  of 
North   Carolina  ; 

And  whereas,  the  said  Buford,  Logan  and  Clyde  have  become,  by  the  act 
of  March  29th,  18S0,  and  the  assignments  of  W.  J.  Best,  J.  Nelson  Tappan 
and  J.  D.  Fish,  the  owners  of  all  the  right,  title,  interest  and  estate  of  the  said 
State  of  North  Carolina  in  said  Railroads,  and  are  entitled  to  have  the  interest 
of  the  said  R.  Y.  McAden  assigned  to  them.  This  indenture  therefore  wit- 
nesseth, that  in  consideration  of  one  dollar  in  hand  paid  to  the  said  R.  Y.  Mc- 
Aden, the  receipt  whereof  is  hereby  acknowledged,  and  for  the  considerations 
mentioned  in  the  recitals  to  this  deed,  the  said  R.  Y.  McAden  hath  given, 
granted,  bargained  and  sold  and  released  to  the  said  A.  S.  Buford,  T.  M.  Lo- 
gan and  W.  P.  Clyde,  and  their  heirs,  all  his  right,  title,  interest  and  estate  in 
and  to  the  franchises  and  property  of  the  Western  North  Carolina  Railroad, 
(Eastern  Division,)  and  the  Western  North  Carolina  Railroad,  (Western  Di- 
vision,) so  as  to  embrace  all  the  interests  in  the  said  Railroads,  beginning  at 
Salisbury  and  having  Paint  Rock  and  the  Tennessee  line  at  or  near  Ducktown  for 
its  Western  termini. 

And  the  said  R.  Y.  McAden  doth  hereby  authorize  the  said  Buford,  Logan 
and  Clyde  to  enter  upon,  keep  and  enjoy  said  franchise  and  property  in  as  full 
and  complete  a  manner  as  he  is  entitled  to  by  vrtue  of  any  deeds  or  titles  which 


(248) 

he  now  owns  or  claims  to  own.     In  witness  whereof  the  said  R.  Y.    McAden 
hath  hereunto  set  his  hand  and  seal,  this  ist  day  of  October,  1881. 

[Seal.]      R.  Y.  McAden. 
Witness  :     D.  Schenck, 


ASSIGNMENT  OF  JUDGMENTS  BY  R.  Y.  McADEN  TO 
BUFORD,  LOGAN,  AND  CLYDE. 


Know  all  men  by  these  presents  that  I,  R.  Y.  McAden,  of  Charlotte,  North 
Carolina,  in  consideration  of  one  dollar  to  me  in  hand  paid,  the  receipt  whereof 
is  hereby  acknowledged,  hath  assigned  and  by  these  presents  doth  assign  to  A. 
S.  Buford,  T.  M.  Logan  and  W.  P.  Clyde  all  my  interest  and  right  in  and  to 
one  certain  judgment  in  Buncombe  county,  Superior  Court  Docket,  standing  in 
thi  name  of  the  Bank  of  Cape  Fear  vs.  the  Western  North  Carolina  Railroad 
Company  for  jibout  twenty  thousand  dollars,  also  two  judgments  on  the  Snperic  r 
Court  Docket,  Rowan  county,  in  the  name  of  R.  Y.  McAden  vs.  the  Western 
North  Carolina  Railroad  Company,  the  two  amounting  to  about  $250,000.00; 
said  judgments  were  taken  as  near  as  I  can  recollect  in  1872  or  1873.  And  I 
authorize  said  Buford,  Logan  and  Clyde  to  collect  said  judgments,  and  if  neces 
sary  to  use  my  name  to  any  suits  or  actions  at  law  or  equity  for  that  purpose, 
and  to  manage,  control  and  own  them  in  as  full  a  degree  as  I  myself  might  here- 
tofore have  done. 

In  witness  whereof  I  do  hereuuto  set  my  hand  and  seal  this  1st   day  Novem- 
ber, 1881. 

R.  Y.  McAden,  [Seal.] 
Witness : 

D.  Schence. 


(  349  ) 


(25°) 


(25i) 


INDEX. 

EASTERN  DIVISION. 

Page. 
Record  of  Sibley  Suit. 

Writ,                                                                                  «  1 

Executed  on  Erwin,  Rutherford  and  Kelley,  .  1 

Alias  ordered,  1 

Complaint,  2 

Parties,  2 

Defendant  a  corporation,  3 

Puwer  to  issue  bonds,  3 

Issued  bo i ids,  4 

Aggregate  bonds  $1,400,000.  5 

Mortgage  1st  March.  1870,  5 

Default  in  payment  of  interest,  7 

Sibley's  bonds,  9 

McAden  claim,  10 

Bank  of  Cape  Fear  judgment,  10 

McAden  agreement,  11 

Sale  under  Bank  of  Cape  Fear  judgment,  11 

Confederation  alleged,  12 

Interrogatories,  13 

Prayer  for  relief,  13 
C'ipy  of  Mortgage  attached  to  complaint,                                15-22 

Trustees'  Acceptance,  23 
Probate  and  registration.                                                            23  21 

Answer  W.  N.  C.  R.  R.  Co.,  24 

Corporation  admitted,  25 

Power  to  borrow  money  admitted,  25 

Power  to  make  mortgage  admitted,  25 

Mortgage  1st  March  1870  admitted,  27 
Bonds  sold  to  divers  persons  named,                                       28-30 

Principal  and  interest  unpaid,  30 
Admissions  relating  to  Cape  Fear  Judgment,                         30-32 

Exhibit  "A"  referred  to  on  page  30.  33 

Answer  of  other  defendants.  34 


( *&  ) 

Page. 

Joint  of  Rutherf  >rd,  Kelly.  Greenlee,  et  ill.,  34 

Separate  of  Erwin,  34 

Separate  of  Rutherford,  34 

Separate  ut  Thomas  Y.   Greenlee,  34 

Separate  of  James  Greenlee,  35 

Separate  of  Hiram  Kelly,  35 

Separate  of  Mary  Carson,  3,=) 

Joint  submission  to  decree,  35 

Order  making  other  parties  defendants,  35 

Order  of  reference  for  an  account,  35 

Report  of   Master  under  said  order,  36-38 

Cause  transferred  to  Asheville,  38 

Judgment  pro  confesso  as  to  McAden.  et  ah,  38 

"                 "             as  to  Howerton,  et  al.,  38 

Cause  set  for  hearing,  39 

Minutes  of  decree  of  foreclosure,  31) 

Master's  report  confirmed  and  decree  of  sale,  40  43 

Cause  transferred  to  Greensboro,  43 

Temporary  receiver  appointed,  43 

Permanent  receiver  appointed,  44 

Order  paying  counsel,  45 

Foreclosure  of  the  mortgage,  45 

Decree  of  sale,  1874,  46 

Notice  of  sale  by  commissioners,  51 

Report  of  commissioners,  52 

Petition  of  C.  H.  Brogden,  et  al,  54 

A.  S.  Merrimon's  assigment  of  bid,  56 

Supplemental  report  of  sale,  56 

Bonds  cancelled,  57 

Sibley's  assignment  to  Mathews,  59 

Minutes  of  decree  confirming  sale,  62 

Decree  confirming  sale,  63 

Agreement  between  Wilson,  McAden  and  others,  69 

"                 "        Mathews,  Wilson  and  McAden,  75 

"                 "         Southern  Sec'y  Co  ,  McAden  and  others,  76 

"                 "         Sibley  and  others,  81 

"                 "        McAden,  Wilson  and  others,  86 

"  "         S  mthern  Sec'y  Co.,  NCR.  R.  and  others,     91 

"                "        Wilson,  McAden  and  others,  95 

Final  decree,  97 

Deed  of  Commissioners  to  State,  89 

Deed  of  Trust  from  State  to  Jenkins,  101 

Record  of  the  Hiram  Kelley  Suit. 

Petition,  iir 


( mj 

k  Page. 

Subpoena,  1 16 

Subpoena  executed,  116 

Cause  transferred  to  Sup'r  Court,  117 

Commissioners  appointed  to  assess  damages,  117 

Report  of  Commissioners,  11S 

Exceptions  to  report,  11S 

Report  set  aside,  118 

Exceptions  withdrawn  and  judgment,  119 

Execution  to  McDowell,  119 

Levy  on  train,  120 

Sale  of  train  but  no  money  paid,  120 

Execution,  120 

Levy  on  franchise,  121 

Execution  to  Burke,  121 

Return  of  this  execution,  122 

Execution  to  Catawba,  122 

Sale  of  franchise  to  McAden.  123 

Execution  to  Iredell  and  return,  124 

Execution  to  Rowan  and  return,  «       125 

•'             from  Rowan,  returnable  to  McDowell,  126 

Return  of  no  goods,  227 

Execution  from  Iredell,  returnable  to  McDowell,  127 

Levied  on  franchise.  &c,  128 

Sale  of  franchise  to  McAden,  128 

Certificate  of  Hiram  Kelley,  129 

Certificate  of  Ex-Sheriff  Simmons,  129 

Record  of  The  Greenlee  Slit. 

Petition,  132 

Order  of  process,  133 

Subpoena  Served.  133 

Cause  transferred  to   Sup'r  Court,  1^3 

Reference  to  Commissioners,  134 

Report  of  Commissioners,  135 

Judgment,  i35 

Execution  to  McDowell,  137 

Return,  no  goods,  137 

Alias  to  McDowell,  138 

Return,  no  goods,  130 

Alias  to  McDowell,  140 

Return,  no  goods,  ij.  1 

Execution  to  Buncombe,  141 

Levy  by  Sheriff  Buncombe,  142 

Franchise,  &c,  sold  to  T.  D.  Carter,  142 

Certificate  of  T.  Y.Greenlee,  143 


(  254 ) 


Record  of  the  John  Rutherford  Suit. 


Page. 


Petitions,  146 

Process  ordered,  147 

Served,  148 

Cause  transferred  to  Superior  Court,  148 

Order  of  reference  and  report.  149 

Report  confirmed,  149 

Judgment.  150 

Execution  to  Iredell,  150 

Return,  no  goods,  151 

Executiou  to  McDowell,  153 

Levied  on  Morganton  train,  152 

A.  M.  Erwin's  receipt  and  plaintiff's  receipts.  154 

Alias  execution  to  McDowell,  155 

Levied  on  road-bed.  franchise,  &c,  155 

Return  of  sale  to  S.  McD.  Tate,  156 

Plaintiff's  receipt,  156 

Deed  to  Tate,  157 

Mem.  of  Chambers'  execution,  157 

W  N  C.  R.  R.  Co.  vs.  R.  M.  Walker.  158 

Summons,  158 
Complaint,                                                                                         158*62 

Temporary  restraining  order,  163 

Notice  to  Coroner  of  Buncombe,  164 

Publication  o.dered,  165 

Defendant  allowed  time  to  answer,                 ^  166 

Injunction  till  further  ord  rs,  166 

"       made  final,  166 


WESTERN    DIVISION. 

Record  E.  Claytox  Suit,  171 

Judgment.  171 

Execution  to  Buncombe,  172 

Levy  and  return  of  sale,  172 

Assignment  to  McAden.  1 73 

Sheriff's  Deed  to  McAden  for  road  bed,  1 73 

"  •'       "         ••        for  franchise.  174 

McAden's  Deed  to  Trustees,  176 

Minutes  of  Directors'  meeting.  177 

Proposition  of  McAden,  180 

Acceptance,  181 


(  255  ) 


Record  of  M.  J.  Fagg  suit, 
Summons, 

Summons  served, 
Complaint, 

Answer  W.  D.  W.  K  C.  R.  R.  Company, 
Separate  answer  commissioners, 

Exhibit, 
Removed  to  Polk  and  back  to  Buncombe, 
Agreement  to  refer  and  order, 

Report  of  referees, 
Judgment, 
Executions  to  Madison,  Haywood  and  Buncombe, 

Levy  and  return  of  sale, 
Sheriff's  deed  to  Fagg  and  others, 
Fagg's  resolution, 

Record  Davidson  Suit. 

Summons  and  complaint, 

Judgment, 

Executions  to  Haywood  and  levy, 

Levy  and  sale, 
SherirFs  deed  to  T.  D.  Carter, 
Davidson's  receipt, 

Record  Roberts  Suit. 

Summons  and  complaint, 

Answer  W.  D.  W.  N.  C.  R.  R.  Co., 

Order  appointing  Receiver, 

Record  Suit  W.  N.  C.  R.  R.  Co.  vs.  Rollins, 

Case  agreed, 

Case  for  Supreme  Court, 

Opinion  of  Supreme  Court, 

Extracts  From  Revised  Code, 

Taylor  vs.  Jerkins, 
Gooch  vs.  McGee. 

Florida  Compromise — Willard  Contract, 

Record  of  T.  D.  Carter  Suit. 

Summons, 

Service  accepted  by  Rollins, 
Complaint, 
Amended  Complaint, 
Answer  of  Commissioners, 


Page. 

184 
185 
185 
186 
188 
190 
191 
192 
192 
193 
194 
T95 
193 
197 


200 
201 
201 
202 
202 
204 


207 
208 


214 

2I5 

216 

224 

225 
229 

236 


241 
241 
241 
242 
242 


(256) 


Page. 


Appendix. 

Deed  from  W.  F.  Wosson,  Sheriff,  to  McAden,  246 

Deed  from  McAden  to  Buford,  Logan  and  Clyde,  247 

Ass'mt  of  Jn.GMTs  by  McAden,  to  Bcford,  Logan  &  Clyde,  24S 


IPPfi 


